Tamil Nadu

South Chennai

CC/252/2015

M/s.Reshmi Rajan.T - Complainant(s)

Versus

M/s.RKAY Towers - Opp.Party(s)

Venghai.I.Prakash Raj

03 Apr 2019

ORDER

                                                                        Date of Filing  : 17.06.2015

                                                                          Date of Order : 03.04.2019

                                                                                  

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.252/2015

DATED THIS WEDNESDAY THE 03^RD DAY OF APRIL 2019

                                 

Mrs. T. Reshmi Rajan,

W/o. Mr. V. Sreejith,

No.1/60, Apoorva Velan Flats,

Block B, Flat – F1, 3^rd Street,

PTC Colony,

Sembakkam,

Chennai – 600 073.                                                      .. Complainant.                                        

 

         ..Versus..

M/s. R KAY TOWERS,

Represented by its Proprietor

Mr. R. Radhakrishnan,

No.6, Second Floor,

K.K. Salai,

Saligramam,

Chennai- 600 093.                                                     ..  Opposite party.

 

Counsel for the complainant      : M/s. Venghai. I. Prakash Raj

Counsel for the opposite party  : M/s. Soundar Vijay Arul Ram &

                                                      others

 

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainants against the opposite party under section 12 of the Consumer Protection Act, 1986 pray to refund a sum of Rs.3,75,000/- being the amount paid for the building plan approval and for construction of the villa along with interest of 18% p.a. and to pay a sum of Rs.4,00,000/- towards compensation for mental agony, deficiency in service and unfair trade practice with cost to the complainant.

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

The complainant submits that she herself and her husband Mr. Sreejith have jointly purchased the property for constructing a villa in the name and style of ‘Vinfield Villas’.  The complainant submits that the opposite party is carrying on construction and realty business had formulated scheme for development and sale of residential villas in the name and style of ‘Vinfield Villas’ and colourful advertisements were made.  The complainant submits that on seeing the advertisement, the complainant has approached the opposite party to purchase the said residential plot to construct a villa on plot No.26 of the property.  The complainant submits that the total cost of the land is Rs.5,25,000/-.  The complainant submits that on request made by the opposite party, the complainant has paid a sum of Rs.2,00,000/- as advance towards construction by way of cheque bearing No.133502 drawn on SBI Bank dated:01.07.2013.  The complainant had further paid a sum of Rs.5,25,000/- towards sale consideration for the plot No.26 and Rs.1,75,000/- towards the cost for the building plan approval in total the complainant had paid Rs.7,00,000/- as second term payment to the opposite party by way of cheque bearing No.500841 dated:21.08.2013 drawn from ICICI Bank.  Therefore, the complainant has paid a total sum of Rs.9,00,000/- to the opposite party.  The complainant submits that the opposite party has received an excess amount of Rs.3,75,000/-.   Hence, the complainant was constrained to issue legal notice dated:02.04.2015 for which, the opposite party has not issued any reply.  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.

2.      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 after getting fully satisfied themselves, the complainant and her husband had decided to purchase the residential plot No.26 in the Layout known as “Venfield Villas” at Naduverrapatty Village, Sriperumbudur Taluk, Kancheepuram District along with the proposed Villa.   Accordingly the opposite party had fixed the price of the vacant site on the market value of Rs.858/- per sq. ft and thus the total sale consideration for the said vacant Plot No.26 measuring to an extent of 1050 sq. ft., which is fixed to the tune of Rs.9,00,000/- and the complainant and her husband were desirous to purchase the same for the total sale consideration of Rs.9,00,000/-.   The opposite party states that on receipt of the said amount of Rs.9,00,000/-, the opposite party had also executed a deed of sale dated:23.08.2013, registered as Document No.7364/2013.   The opposite party states that the total sale consideration of the vacant plot was fixed for a prevailing market value of the property to the tune of Rs.9,00,000/- being a sum of Rs.858/- per sq. ft. and on receipt of the said sum towards sale consideration the said sale deed was executed in favour of the complainant and her husband and the same was undervalued for Rs.5,25,000/- only for their convenience and not otherwise as alleged in the complaint.  According to the payment plan, the complainant and her husband would have been paid a sum of Rs.15,92,000/- on or before 23.08.2013 which includes the cost of vacant land and advance for construction being the first 2 instalments of 20% each of the total sale consideration of the said proposed Villa.   In fact, the opposite party has started construction of some other plots where the respective owners of the plots have adhered to the payment schedule and there is no dispute with any one of the plot owners except this complainant.   Therefore, there is no deficiency in service on the part of the opposite party and hence, the complaint is liable to be dismissed.

3.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A7 are marked.  Inspite of sufficient time is given, the opposite party miserable failed to file proof affidavit to prove the contention raised in the written version and hence, proof affidavit of the opposite party is closed.

 

4.      The points for consideration is:-

1. Whether the complainant entitled to get refund of a sum of Rs.3,75,000/-  paid towards building plan approval and for construction of Villa as per the Agreement with interest as prayed for?
2. Whether the complainant entitled to a sum of Rs.4,00,000/- towards compensation for damages, mental agony, deficiency in service and unfair with cost as prayed for?

5.      On point:-

The opposite party filed written version and miserably failed to file proof affidavit and documents to prove the contention raised in the written version.  The complainant has filed his written arguments and advanced oral arguments also.  Perused the records namely the complaint, written version, proof affidavit and documents of the complainant.  The complainant pleaded and contended that she herself and her husband Mr. Sreejith have jointly purchased the property for constructing a villa in the name and style of ‘Vinfield Villas’.  Ex.A5 is the Sale Deed No.7364/2013 dated:23.08.2013.  Further the complainant contended that the opposite party is carrying on construction and realty business had formulated scheme for development and sale of residential villas in the name and style of ‘Vinfield Villas’ and colourful advertisements were made.  Ex.A1 is the brochure issued by the opposite party.   Further the contention of the complainant is that on seeing the advertisement, the complainant has approached the opposite party to purchase the said residential plot to construct a villa on plot No.26 of the property.   But on a careful perusal of records, before executing the Sale Deed dated:23.03.2013 as per Ex.A5, the complainant has entered into the an Agreement of Sale and Construction on 22.08.2013 as per Ex.A3  and paid a sum of Rs.2,00,000/- and Rs.7,00,000/- on 05.07.2013 & 23.08.2013 respectively.   Ex.A2 & Ex.A4 are the receipts.  But on a careful perusal of the Agreement for Sale and Construction, it is apparently clear that the total cost towards the villa including the land and construction is Rs.39,80,000/-.  It is also seen from Ex.A3, Agreement for Sale and Construction that the cost of land is not specifically mentioned.  Equally, the cost of construction also has not been specifically mentioned.  On a careful perusal of Ex.A5, Sale Deed, it reads as follows:-

“and Whereas, the Vendors have decided to sell the above said properties, converted as house sites in the name of Vinfield, and whereas the Vendors have now offered to sell the Vacant house site, bearing Plot No.26, measuring an extent of 1,050 sq. feet. Comprised in Survey No.87/2B3 Part, and 87/2B1B, Situated at No.95, Naduveerapattu Village, Sriperumbudur Taluk, Kanchipuram morefully described in the Schedule hereunder to the Purchaser for a total sale consideration of Rs.5,25,000/- free from all encumbrances. 

NOW THIS DEED of SALE WITNESSETH:

That in pursuance of the above said agreement and in consideration a sum of Rs.5,25,000/- paid by Purchaser to the Vendors by way of Cash, at the time of registration of this sale deed, the Vendors have acknowledged, hereby admit and acknowledge and release the Purchaser from any requirement to make any other payment and in consideration of the same the Vendors hereby conveys, grants, sells, transfers, assigns, unto and in favour of the Purchaser, the property being Vacant house site, more clearly described in the Schedule hereunder together with water, water courses, easements, liberties, advantages whatsoever over the schedule property and together with all rights, title, interest, claims and demands whatsoever over the Schedule property in favour of the Purchaser TO HAVE AND TO HOLD the same free of all encumbrances, absolutely and forever”

proves that there is an agreement Ex.A3 which is very specific that in Agreement for Sale and Construction

Clause 1. Contract for Sale and Construction

“That in purchase of foregoing and in consideration of the total sale price (more fully described in Annexure 1 hereto and hereinafter referred to as “total sale consideration”), the party of the first part has agreed to sell a plot more particularly described under item 1 of schedule B and construct the Villas more particularly described under item 2 of schedule B as the specification in accordance with the specification provided in Annexure 2 here along with the right to enjoy, in common, the common areas and facilities as applicable to other allottees of a villa schedule property subject to the terms, condition and convenants herein contained”.

6.     Further the contention of the complainant is that the total cost of the land is Rs.5,25,000/- which is very clear from Ex.A5, Sale Deed.  As per Ex.A3, the exact price of the land plot No.26 is not mentioned.  Hence, out of Rs.39,80,000/- the cost of the land is only Rs.5,25,000/- the rest of the amount is for construction.  The complainant has paid a total sum of Rs.9,00,000/- as per Ex.A2 & Ex.A4 receipts.  The opposite party has not taken any steps to construct the villa as per Ex.A3, agreement.  The opposite party has not obtained the plan permission also.   In the written version, it is seen that the opposite party has not started the construction as per Ex.A3.   Thereby, the opposite party has committed deficiency in service.  Further the contention of the complainant is that the opposite party has received an excess amount of Rs.3,75,000/-.   Since, the opposite party has not taken any steps for construction and violated the terms and condition of Sale cum Construction Agreement, the opposite party is liable to pay the excess amount of Rs.3,75,000/- received with interest.  Even after repeated requests and demands, the opposite party turned deaf ears.   Hence, the complainant was constrained to issue legal notice dated:02.04.2015 as per Ex.A7 for which, the opposite party has not issued any reply.  Hence, the complainant was constrained to file this case.  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.3,75,000/- with interest at the rate of 9% p.a. from the date of complaint to till the date of this order and a sum of Rs.35,000/- towards compensation for mental agony with cost of Rs.10,000/- to the complainant.

In the result, this complaint is allowed in part.   The opposite party is directed to refund a sum of Rs.3,75,000/- (Rupees Three lakhs seventy five only) being amount received in excess along with interest at the rate of 9% p.a. from the date of complaint (i.e.) 08.05.2015 to till the date of this order (i.e.) 03.04.2019 and to pay a sum of Rs.35,000/- (Rupees Thirty five 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 03^rd day of April 2019. 

 

MEMBER                                                                  PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1		Copy of brochure issued by the opposite party
Ex.A2	05.07.2013	Copy of receipt for booking advance
Ex.A3	22.08.2013	Copy of Agreement of Sale and Construction
Ex.A4	23.08.2013	Copy of receipt
Ex.A5	23.08.2013	Copy of Sale Deed No.7364/2013
Ex.A6	01.04.2015	Copy of General Power of Attorney No.2509/2015
Ex.A7	02.04.2015	Copy of legal notice and acknowledgment

 

OPPOSITE PARTY SIDE DOCUMENTS:- Proof Affidavit - Closed

 

 

MEMBER                                                                  PRESIDENT