Tamil Nadu

South Chennai

CC/195/2015

M/s.V.Natarajan, N.Velayutham - Complainant(s)

Versus

M/s.Suresh, Proprietor of Real Value Promoters Pvt Ltd - Opp.Party(s)

E.Sivanandan

21 Jun 2019

ORDER

                                                                        Date of Filing  : 24.04.2015

                                                                          Date of Order : 21.06.2019

                                                                                  

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.195/2015

DATED THIS FRIDAY THE 21^ST DAY OF JUNE 2019

                                 

1. V. Natarajan,

2. N. Velayudham,

S/o. Mr. V. Natarajan,

Both residing at:-

No.7 #5, Murugaiah Flats,

Thangal Extension,

Virugambakkam,

Chennai – 600 092.                                                      .. Complainants.                                                      

 

                                                                                            ..Versus..

Mr. Suresh,

Proprietor,

M/s. Real Value Promotes Pvt. Ltd.,

Ambojini 17-1,

Poes Road,

2^nd Street,

Teynampet,

Chennai – 600 018.                                                   ..  Opposite party.

 

Counsel for the complainants    : Mr. E. Sivanandan

Counsel for the opposite party  : Mr. A. Palaniappan

 

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 prays to pay a sum of Rs.8,19,082/- which was paid as advance along with interest at the rate of 24% p.a. from the date of cancellation letter dated:10.11.2013 till the realization, to pay a sum of Rs.1,00,000/- towards compensation for mental agony and undue hardship with cost of Rs.25,000/- to the complainants.

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

The complainants submit that the opposite party launched an Apartment at Siruseri was impressed by the complainants and approached the opposite party with an intention to purchase apartment in the 1^st Floor No.1-F in D Block of 993 sq. ft. for a total sale consideration of Rs.35,00,000/-. The opposite party also issued an allotment letter dated:19.07.2013. The complainants submit that while booking the apartment on 08.07.2013, the complainants has paid an advance amount of Rs.1,00,000/- and thereafter, on several occasions, the complainants paid huge amount to the tune of Rs.8,19,082/-.  The complainants submit that due to personal reasons and also, there is no substantial progress in construction.  The complainants requested the opposite party to cancel the booking by submitting a letter of cancellation dated:10.11.2013.  The opposite party even after receipt of the letter has not come forward to cancel the booking and refund the advance amount paid by the complainant and there was no response from the opposite party also. Hence, the complainants have issued a remainder letter dated:24.05.2013. Thereafter, the complainants issued legal notice dated:04.03.2015 for refunding the advance amount for which also, the opposite party has not sent any reply.  The opposite party wantonly and deliberately delayed the matter which caused great mental agony.   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 state that the complainants approached the opposite party with an interest to purchase an apartment which was developed by the opposite party in Siruseri.  The complainants themselves opted for a flat at Padmalaya, 1F in D Block, total area of the flat is 993 sq. ft. for a total sale consideration of Rs.35,00,000/- and booked the apartment and paid an advance amount of Rs.1,00,000/- on 08.07.2013.  The complainant had approached the opposite party to purchase a flat and the officials of the opposite parties had duly received and rendered all possible help and service without any delay up to the satisfaction of the complainant.   The opposite party states that all the construction work will be started after due approval and appropriate sanctions of the authorities. On 08.07.2013, the complainant brought a cheque for a sum of Rs.1,00,000/- towards the 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 them that on encashment of the cheque, the opposite parties will pass on the receipt.   Thereafter, the complainants paid Rs.7,19,082/-.  The opposite party have duly informed to the complainants that as per the terms and conditions agreed by the complainants in the event of cancellation the opposite party will get the refund of a sum of Rs.25,000/- from the booking amount will necessary taxes as applicable which will be deducted from the amount received and the balance sum will be released on resale of the apartment.  The complainant was duly informed that Planning Permit has been obtained from the DTCP and the statutory amounts were paid.  The payments and amounts that were received from the flat purchasers were duly utilized towards construction of the flats.  There is no delay in putting up the construction as and when the sanctioning authority gives the sanction the opposite party has duly started the construction work as per the plan and is developing the property without any delay.  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 complainants has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A12 are marked.  In spite of several adjournments, the opposite party has not filed his proof affidavit and hence, the proof affidavit of the opposite party is ‘closed’.

4.      The points for consideration is:-

1. Whether the complainants are entitled to the refund of a sum of Rs.8,19,082/- paid as advance towards booking of flat with interest at the rate of 24% p.a. as prayed for?
2. Whether the complainants are entitled to a sum of Rs.1,00,000/- towards compensation for mental agony, undue hardship etc with cost of Rs.25,000/- as prayed for?

5.      On point:-

The opposite party after filing his written version has not turned up and preferred to file proof affidavit and document to prove the contentions raised in the written version. The complainant has filed his written argument.  Heard the complainant’s Counsel also.  Perused the records namely; the complaint, written version, proof affidavit and documents of the complainant.  The learned Counsel for the complainant would contend that the opposite party launched an Apartment at Siruseri was impressed by the complainant and approached the opposite party with an intention to purchase apartment in the 1^st Floor No.1-F in D Block of 993 sq. ft. for a total sale consideration of Rs.35,00,000/-.  The opposite party also issued an allotment letter dated:19.07.2013 as per Ex.A7.  Further the contention of the complainant is that while booking the apartment on 08.07.2013, the complainant has paid an advance amount of Rs.1,00,000/- as per Ex.A1 and thereafter, on several occasions, the complainants paid huge amount to the tune of Rs.8,19,082/- as per Ex.A2 to Ex.A6, Ex.A8 to Ex.A10.  Further the contention of the complainants is that due to personal reasons and also, there is no substantial progress in construction.  The complainants requested the opposite party to cancel the booking by submitting a letter of cancellation dated:10.11.2013 as per Ex.A10.  The opposite party even after receipt of the letter has not come forward to cancel the booking and refund the advance amount paid and there was no response from the opposite party also.  Hence, the complainants have issued a remainder letter dated:24.05.2013 as per Ex.A11. Thereafter, the complainants issued legal notice dated:04.03.2015 as per Ex.A12 for refund of the advance amount for which also, the opposite party has not sent any reply.  The opposite party wantonly and deliberately delayed the matter which caused great mental agony.  The delay in refund of the advance amount even after due cancellation by letter dated:10.11.2013 amounts to deficiency in service and unfair trade practice.  The complainants are claiming a sum of Rs.8,19,082/- paid as advance with a compensation of Rs.1,00,000/- and cost of Rs.25,000/-.  Further the contention of the complainants is that the opposite party has raised several contentions in the written version particularly, as per the booking form and terms and conditions after booking a flat on cancellation the opposite party builder is entitled to collect a sum of Rs.25,000/- towards cancellation charges and the balance amount will be refunded only after selling the apartment to the 3^rd parties.  But the opposite party has not filed any such booking form or terms and conditions. 

6.     The learned Counsel cited the decisions reported in:

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”.

 

III (2016) CPJ 228 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

 

Between

 

VIBGYOR INFRAPROJECTS PVT. LTD.

-Versus-

MILLENNIUM TOWERS HARMONY CHS LTD.

 

Held that

          “The learned Counsel for the petitioner submits that though the District Forum, Supreme Court in New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage (Pvt.) Ltd. (supra) could not have extended the time for filing the written version beyond 45 days from the date of receipt of notice by the petitioner, the State Commission, in exercise of its appellate jurisdiction, could have extended the said time and this Commission also can extend the said time in exercise of its revisional jurisdiction.

 

III (2018) CPJ 277 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

 

Between

 

SPLENDOR LANDBASE LTD. & ANR.

-Versus-

MAMTA ARORA & ORS.,

SATBIR SINGH,

BIMLA RANI

 

Held that

 

        “15. Another objection raised by the learned Counsel is with respect to Clauses 13 and 14 of the Application Form, which stipulate that any dispute between the parties shall be referred to a sole Arbitrator.  The question of the jurisdiction of Consumer Fora in the light of the provisions of an arbitration clause, is squarely covered by a Larger Bench’s decision of this Commission in Consumer Complaint No.701 of 2015, Aftab Singh v. EMMARMGE Land Limited & Anr., III (2017) CPJ 270 (NC) recently affirmed by the Hon’ble Apex Court”.

          “17. The principle laid down by this Commission in Emaar MGF Land Liimited & Anr. Amit Puri, II (2015) CPJ 568 (NC), dated: 30 March, 2015, which has attained finality, is that in the event of a developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between  the contracting parties, an allottee cannot be compelled to accept and alternate site/ plot and he would be within his rights to seek refund of the amount deposited with the developer against allotment”.

The complainants are entitled to get refund of the amount.  Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite party shall pay a sum of Rs. 8,19,082/- with interest at the rate of 9% p.a. from the date of complaint to till the date of this order with a compensation of Rs.30,000/- for mental agony with cost of Rs.10,000/- to the complainants.

In the result, this complaint is allowed in part.   The opposite party is directed to pay a sum of Rs.8,19,082/- (Rupees Eight lakhs nineteen thousand and eighty two only) being advance paid for booking an apartment along with interest at the rate of 9% p.a. from the date of complaint (i.e.) 24.04.2015 till the date of this order (i.e.) 21.06.2019 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 complainants.

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 21^st day of June 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANTS’ SIDE DOCUMENTS:-

Ex.A1	08.07.2013	Copy of cheque bearing No.733741, ICICI Bank
Ex.A2	09.07.2013	Copy of cash receipt
Ex.A3	10.07.2013	Copy of D.D No.996453, IndusInd Bank
Ex.A4	16.07.2013	Copy of cash receipt
Ex.A5	16.07.2013	Copy of Demand Draft bearing No.07117, Dhanalakshmi Bank
Ex.A6	16.07.2013	Copy of Demand Draft No.033887, ICICI Bank
Ex.A7	19.07.2013	Copy of allotment letter
Ex.A8	21.08.2013	Copy of cash receipt – 1
Ex.A9	21.08.2013	Copy of cash receipt - 2
Ex.A10	10.11.2013	Copy of Cancellation letter given by the complainants
Ex.A11	24.05.2014	Copy of reminder letter given by the complainants
Ex.A12	04.03.2015	Copy of legal notice sent by the complainants

 

OPPOSITE PARTY:-  Proof Affidavit –   Closed

 

 

MEMBER                                                                                PRESIDENT