Tamil Nadu

South Chennai

CC/256/2014

M/s.R.Murali - Complainant(s)

Versus

M/s.Real Value Promoters (P) Ltd., - Opp.Party(s)

M/s.R.Manivannan

18 Sep 2019

ORDER

                                                                  Complaint presented on : 10.06.2014

                                                                    Date of Disposal            : 18.09.2019

                                                                                  

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.256/2014

DATED THIS WEDNESDAY THE 18^TH DAY OF SEPTEMBER 2019

                                 

Mr. R. Murali,

S/o. Late G. Ramaswamy Naidu,

Flat No.111/2, Five Star Apartments,

Padikuppam Road,

Anna Nagar West,

Chennai – 600 040.                                                        .. Complainant.                                                     

                                                                                              ..Versus..

 

The Managing Director,

M/s. Real Value Promoters (P) Ltd.,

“Amarasri”, No.455, Anna Salai,

Teynampet,

Chennai – 600 018.                                                    ..  Opposite party.

 

Counsel for the complainant     : Mr. R. Manivannan

Counsel for the Opposite party : 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 pay partial margin money paid on 25.11.2013 of Rs.50,000/-, to pay a sum of Rs.6,400/- being interest for the partial margin money at the rate of 24% from 25.11.2013 to 06.06.2014 and to pay sum of Rs.50,000/- towards compensation for mental agony and deficiency in service with cost of Rs.10,000/- to the complainant.

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

The complainant submits that on 24.11.2013, the complainant saw the road side advertisement of the opposite party’s construction project at Siruseri, displayed in the Old Mahabalipuram Road, Siruseri, Chennai.  Immediately he visited the opposite party’s construction project site at Siruseri and met one Mr. S.A. Nirmal, Executive (Marketing) person of the opposite party informed him that the complainant’s son Mr. Vasanth Kumar intended to purchase a flat for the cost of Rs.25 Lakh for which Mr. S.A. Nirmal said to the complainant that the cost of flat at Siruseri project site is more than Rs.50 Lakhs a piece and he advised the complainant to visit another construction project of the opposite party at Vandalur, Kelambakkam Main Road developed as “Real Value Padmalaya” few kilometres away from Siruseri project site where the cost of the flats would be around Rs.25 Lakhs a piece and gave his visiting card.  The complainant submits that he went to the above said project site and met the Marketing Executive of the opposite party who has given him pamphlet consisting of three options in the purchase of flats.   At the same time, the marketing Executive also suggested the complainant to go in for the second option which would be suitable for his son’s budget.   That option consist of plan of down payment of Rs.95,000/- at the time of booking and the balance shall be paid in equated monthly instalments through bank loan after handing over possession of fully constructed flat to the complainant’s son.  The complainant submits that according to the advise of the Marketing Executive, the complainant visited the opposite party’s Corporate Office where the Marketing Executive introduced the Senior Marketing Executive one Mr. Sivakumar to the complainant and he also suggested for the second option will be the best choice to purchase the flat.  

2.     Further, the Senior Executive Marketing asked the complainant to pay atleast Rs.50,000/- towards the margin money to proceed with the booking of flat with the opposite party’s Real Value Padmalaya construction project and he also promised on payment of Rs.50,000/- towards the partial marginal money.  

(i) “A receipt for payment of Rs.50,000/- would be issued to him;

(ii) All the copies of the title deeds pertaining to the opposite party’s “REAL VALUE PADMALAYA” construction project would be handed over to the complainant for obtaining legal opinion from his advocate;

(iii) He can decide whether the cost of the above flat offered for booking is within his son Mr. Vasanth Kumar’s future budget after the expected delivery of the fully constructed flat after 2 years from the date of booking;

(iv) He can obtain Legal Opinion from his Advocate on the opposite party’s “REAL VALUE PADMALAYA” construction Project;

(v) He can book a flat in the opposite party’s “REAL VALUE PADMALAYA” construction Project by paying the balance Margin Money of Rs.45,000/- if

(1) the cost of the above flat offered for booking is within his son Mr. VASANTH KUMAR’s future budget after the expected delivery of the fully constructed flat after 2 years from the date of booking; and

(2) the legal opinion is positive in the sense that the opposite party has the right and title over the “REAL VALUE PADMALAYA” construction Project”.

Believing at the words of the Senior Executive Marketing person of the 1^st opposite party, the complainant issued a cheque for Rs.50,000/- on 25.11.2013 cheque No.704320 drawn on State Bank of India, Chennai – 600 040 and the same was realized by the opposite party on 26.11.2013 evidenced through.

3.     The complainant submits that the Marketing Executive asked him to wait for issuing receipt for the payment Rs.50,000 but till evening 4.30 P.M. on 25.11.2013, no receipt was issued.   The opposite parties said the receipt will be issued after realization of the cheque amount.  In spite of furnishing receipt for the partial margin money Rs.50,000/- received from the complainant and to provide necessary title documents, the opposite parties demanded the complainant to pay 15% of the total cost of the flat on booking stage itself is violation of the advertisement offer option results in breach of contract.   Thereafter, the complainant by issuing series of letters and through e-mail to the opposite party demanded for the refund of partial margin money paid for booking the flat.   But the opposite parties not come forward to settle the complainant’s demand.   Hence, the complainant issued legal notice to the opposite party on 29.04.2014 but the opposite party neither replied to the said notice nor has paid the claim amount in the legal notice after receipt of the same.  The complainant’s son approached the bank to get housing loan, but the bank has refused to give him such huge amount considering his salary.   The act of the opposite party amounts to deficiency in service and unfair trade practice which caused great mental agony.    Hence, the complaint is filed.

4.      The brief averments in the written version filed by opposite party is as follows:

The opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.   The opposite party states that the complainant booked the flat of Real Value Padmalaya construction project by payment of partial margin money according to the option of the complainant.   The opposite party states that the construction will start after due approval and appropriate sanctions of the authorities.    The opposite party states that the complainant booked two bed room apartment at No.3E in the Third Floor of Block Q of the Real Value Padmalaya.  The total cost of the flat is Rs.33,04,287/-.   On 25.11.2013 brought a cheque for Rs.50,000/- towards 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 party will pass on the receipt along with the parent documents enabling the complainant to approach the banks of their choice for the property loan.   Thereafter, the title paper were duly received by the complainant without any delay and he was called for to pay the balance amount of the margin money.  On 10.12.2013, the complainant caused a communication stating that  his son may not be eligible for the loan to purchase the booked flat.   The opposite party has duly informed to the complainant that as per the terms and conditions agreed by the complainant he can get the refund of Rs.25,000/- in case of cancellation of booking, the opposite party will deduct a sum of Rs.25,000/- from booking amount including tax as applicable will be deducted and the balance will be released after resale of the apartment.   Further, the complainant has rebooked the flat on 21.06.2014.   Hence, the complainant has approached this Forum without clean hands.  Therefore, there is no deficiency in service on the part of the opposite party and hence, the complaint is liable to be dismissed.

5.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A15 are marked.  Proof affidavit of the opposite party filed and documents Ex.B1 to Ex.B4 are marked on the side of the opposite party.

 

6.      The points for consideration is:-

1. Whether the complainant entitled to get refund of Rs.50,000/- paid as partial margin money with 24% interest as prayed for?

2. Whether the complainant is entitled to a sum of Rs.50,000/- towards compensation for mental agony and deficiency in service with cost of Rs.10,000/- as prayed for?

7.      On point:-

The complainant filed his written arguments.  The opposite party has not filed any written arguments.  Heard both sides.  Perused the records namely; the complaint, written version, proof affidavits and documents.  The learned Counsel for the complainant contended that on seeing the road side advertisement of the opposite party’s construction project at Siruseri, displayed in the Old Mahabalipuram Road, Siruseri, Chennai on 24.11.2013 visited the opposite party’s construction project site at Siruseri and met one Mr. S.A. Nirmal, Executive (Marketing) person of the opposite party; informed him that the complainant’s son Mr. Vasanth Kumar intended to purchase a flat for the cost of Rs.25 Lakh for which Mr. S.A. Nirmal said to the complainant that the cost of flat at Siruseri project site is more than Rs.50 Lakhs a piece and he advised the complainant to visit another construction project of the opposite party at Vandalur, Kelambakkam Main Road developed as “Real Value Padmalaya” within few kilometres away from Siruseri project site where the cost of the flats would be around Rs.25 Lakhs a piece and gave his visiting card as per Ex.A1.  Further the contention of the complainant is that he went to the above said project site and met the Marketing Executive of the opposite party who has given him pamphlet as per Ex.A2 consisting of three options in the purchase of flats.   At the same time, the marketing Executive also suggested the complainant to go in for the second option which would be suitable for his son’s budget.   That option consist of plan of down payment of Rs.95,000/- at the time of booking and the balance shall be paid in equated monthly instalments through bank loan after handing over possession of fully constructed flat to the complainant’s son. 

8.     Further the contention of the complainant is that according to the advise of the Marketing Executive, the complainant visited the opposite party’s Corporate Office where the Marketing Executive introduced the Senior Marketing Executive one Mr. Sivakumar to the complainant and he also suggested for the second option will be the best choice to purchase the flat.   Further the Senior Executive Marketing asked the complainant to pay atleast Rs.50,000/- towards the margin money to proceed with the booking of flat with the opposite party’s “Real Value Padmalaya” construction project and he also promised on payment of Rs.50,000/- towards the partial marginal money.  

(i) “A receipt for payment of Rs.50,000/- would be issued to him;

(ii) All the copies of the title deeds pertaining to the opposite party’s “REAL VALUE PADMALAYA” construction project would be handed over to the complainant for obtaining legal opinion from his advocate;

(iii) He can decide whether the cost of the above flat offered for booking is within his son Mr. Vasanth Kumar’s future budget after the expected delivery of the fully constructed flat after 2 years from the date of booking;

(iv) He can obtain Legal Opinion from his Advocate on the opposite party’s “REAL VALUE PADMALAYA” construction Project;

(v) He can book a flat in the opposite party’s “REAL VALUE PADMALAYA” construction Project by paying the balance Margin Money of Rs.45,000/- if

(1) the cost of the above flat offered for booking is within his son Mr. VASANTH KUMAR’s future budget after the expected delivery of the fully constructed flat after 2 years from the date of booking; and

(2) the legal opinion is positive in the sense that the opposite party has the right and title over the “REAL VALUE PADMALAYA” construction Project”.

Believing at the words of the Senior Executive Marketing person of the 1^st opposite party, the complainant issued a cheque for Rs.50,000/- on 25.11.2013 cheque No.704320 drawn on State Bank of India, Chennai – 600 040 as per Ex.A4 and the same was realized by the opposite party on 26.11.2013 evidenced through Ex.A9.

9.     Further the contention of the complainant is that the Marketing Executive asked him to wait for issuing receipt for the payment Rs.50,000 but till evening 4.30 P.M. on 25.11.2013, no receipt was issued, the opposite parties said the receipt will be issued after realization of the cheque amount but till filing this complaint neither the receipt nor the documents of title deeds provided to the complainant regarding the REAL VALUE PADMALAYA construction project to obtained legal opinion by the complainant to purchase the flat amounts to deficiency in service by the opposite party.  In spite of furnishing receipt for the partial margin money Rs.50,000/- received from the complainant and to provide necessary title documents, the opposite parties demanded the complainant to pay 15% of the total cost of the flat on booking stage itself is violation of the advertisement offer option as per Ex.A2 results in breach of contract of the opposite party which amounts to unfair trade practice.  Thereafter, the complainant by issuing series of letters and through e-mail to the opposite party as per Ex.A6 to Ex.A13 and demanded for the refund of partial margin money paid to book the flat.   But the opposite parties not heeded to the complainant’s demand.   Hence, the complainant issued legal notice to the opposite party dated:29.04.2014 Ex.A14, but the opposite parties neither replied to the said notice nor has paid the amount in the legal notice after receipt of the same amounts to deficiency in service by the opposite party.  

10.    Further the contention of the complainant is that as per the terms and conditions mentioned in the booking form, Ex.A4, “In case of cancellation Rs.25,000/- from booking amount with necessary taxes as applicable will be deducted and the balance will be released against resale of the apartment”; is not acceptable because, the opposite party has not commenced any construction till filing of this complaint.   Muchless, there was no progress.   Equally, the said condition is a heavy burden trusted upon the purchaser by the builder proves unfair trade practice. 

11.    Therefore, this Hon’ble Forum is relying on the decision reported in the following National Commission Order.

I (2009) CPJ 136 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

 

Between

PRASAD HOMES PRIVATE LIMITED

-Versus-

E. MAHENDER REDDY & ORS.

         

Held that

         

          “Consumer Protection Act, 1986 – Sections 2(1)(g) and 2(1)(r) – Housing – Builder – Possession not delivered – Unfair trade practice – Approved layout plans not supplied – No development work carried out at site – Payment of further instalments stopped by complainant – Builder cannot be allowed to take shelter under agreement clause to usurp money deposited by complainants – Agreement clause heavily loaded in favour of builder and against purchasers – It entitles forfeiture of deposited amount even if fault is on part of builder himself – Such agreement clearly amounts to unfair trade practice – Refund of deposited amount with interest directed by Fora below, upheld in revision”.

Result: Revision Petition dismissed.

 

          “The present case is one of deficiency on the part of the builder in not handing over the possession of plot in question, not supplying the approved layout plans to the complainants and carrying out no development work at the site as a result of which the complainants stopped payment of further instalments.  In view of this factual position builder cannot be allowed to take shelter under the grab of Clause 7 of the agreement so as to usurp the money deposited by the complainants.  We must observe that Clause 7 of the agreement is heavily loaded in favour of the builder and against the purchasers of the plot inasmuch it entitles the builder to forfeit the entire amount so deposited by the purchasers of the plots even if the fault is on the part of the builder itself.  In our view such an agreement would clearly amount to unfair trade practice within the meaning of Consumer Protection Act”.

 

12.    Further the contention of the complainant is that another terms and conditions mentioned in Ex.A4 as “It is the sole responsibility of the purchaser(s) to get the loan payments from the bank on time”.  The complainant’s son approached the bank to get housing loan, but the bank has refused to give him such huge amount considering his salary.  Therefore, it is the one of the bonafide reason for cancellation of the booking of the flat by the complainant, he is entitle to refund of the entire amount of Rs.50,000/- paid as partial margin money.

13.    The learned Counsel for the opposite party would contend that the complainant booked the flat of Real Value Padmalaya construction project by payment of partial margin money according to the option of the complainant as per Ex.B2.   Further the contention of the opposite party is that the construction will start after due approval and appropriate sanctions of the authorities.  But no steps taken by the opposite party to obtain approval from the authorities.  No document also produced and no construction started till filing of the case amounts to deficiency in service.  The opposite party admitted that the complainant booked two bed room apartment at No.3E in the Third Floor of Block Q of the Real Value Padmalaya and paid a sum of Rs.50,000/- through cheque towards booking advance and booked the flat as per Ex.B3 and also admitted in the version filed by the opposite party that the opposite party informed the complainant that on encashment of the cheque, the opposite party will pass on the receipt along with the parent documents enabling the complainant to approach the banks of their choice for the property loan.  But the opposite party encashed cheque amount on 26.11.2013 itself as per Ex.A15 not issued  the receipt and the necessary documents to the complainant even after realization of cheque amount and till filing of the case amounts to deficiency in service.   Since the opposite party neither acted according to their public offer as per Ex.B2 nor produced the necessary documents to the complainant immediately after payment of partial margin money, the opposite party cannot be allowed to take shelter under the terms and conditions stipulated in the booking form, in the event of cancellation, the opposite party will deduct a sum of Rs.25,000/- including tax and the balance amount will be refunded to the complainant / purchaser.  Further the contention of the opposite party is that the complainant rebooked the flat only on 21.06.2014 but no documents produced on the opposite party’s side to prove their contention.  Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite party shall refund the amount of Rs.50,000/- received by way of margin money with interest at the rate of 9% p.a. from the date of complaint to till the date of this order and shall pay a sum of Rs.30,000/- towards compensation for mental agony with cost of Rs.10,000/-.

In the result, this complaint is allowed in part.   The opposite party is directed to refund a sum of Rs.50,000/- (Rupees Fifty thousand only) being amount received as booking advance along with interest at the rate of 9% p.a. from the date of presentation of this complaint (i.e.) 10.06.2014 to till the date of this order (i.e.) 18.09.2019 and to pay a sum of Rs.30,000/- (Rupees Thirty thousand only) towards compensation for mental agony with cost of Rs.10,000/- (Rupees Ten thousand only) to the complainant.

The aboveamounts shall be payablewithin 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 September 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	24.11.2013	Copy of visiting card of Mr. S.A. Nirmal
Ex.A2	24.11.2013	Copy of pamphlet of Real Value Padmalaya offering three options
Ex.A3	25.11.2013	Copy of visiting card of Mr. K. Sivakumar
Ex.A4	25.11.2013	Copy of booking form
Ex.A5	10.12.2013	Copy of fax message with acknowledgement
Ex.A6	11.12.2013	Copy of letter sent by Speed Post with acknowledgment due
Ex.A7	18.12.2013	Copy of fax message with acknowledgment
Ex.A8	06.01.2014	Copy of fax message with acknowledgment
Ex.A9	21.01.2014	Copy of Statement of Account
Ex.A10	27.01.2014	Copy of letter sent by Speed Post with acknowledgment due
Ex.A11	11.02.2014	Copy of legal notice with acknowledgement due
Ex.A12	12.03.2014	Copy of letter submitted personally bearing acknowledgement
Ex.A13	20.03.2014	Copy of fax message with acknowledgement
Ex.A14	28.04.2014	Copy of legal notice with acknowledgment card
Ex.A15		Copy of bank pass book

 

 

OPPOSITE PARTY SIDE DOCUMENTS:-  

Ex.B1	23.08.2013	Copy of Authorisation letter
Ex.B2		Copy of offer scheme broacher
Ex.B3	25.11.2013	Copy of the Booking Form
Ex.B4	11.12.2013	Copy of communication sent by the complainant

 

 

                              

MEMBER                                                                                PRESIDENT