Tamil Nadu

South Chennai

CC/154/2017

V.Ashwin Kumar - Complainant(s)

Versus

M/s.Vijay Shanthi Builders Ltd - Opp.Party(s)

S.Sathiaseelan

09 Jan 2020

ORDER

                                                                               Date of filing      : 10.05.2017

                                                                               Date of Disposal : 09.01.2020

                                                                                  

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.154/2017

DATED THIS THURSDAY THE 09^TH DAY OF JANUARY 2020

                                 

V. Ashwin Kumar,

S/o. Mr. M.S. Vijayakumar,

No.12/3, I Floor,

GAA Khan, 7^th Street,

Thousand Lights,

Chennai – 600 006.                                                         .. Complainant.                                                     

..Versus..

 

M/s. Vijay Shanthi Builders Ltd.,

Rep. by its Authorized Signatory,

No.20/43, Kasturi Rangan Road,

Near Russian Cultural Centre,

Alwarpet,

Chennai – 600 018.                                                    ..  Opposite party.

 

Counsel for the complainant      : M/s. S. Sathiaseelan & another

Counsel for the opposite party  : M/s. R. Parthasarathy & others

 

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 refund the advance amount of Rs.40,000/- with interest at the rate of 18% p.a. since 17.01.2009 and to pay a sum of Rs.5,00,000/- towards compensation for mental agony, harassment, inconvenience and frustration suffered by the complainant with cost.

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

The complainant submits that he booked a flat with 3 BHK with the opposite party on 17.01.2009 by paying an advance amount of Rs.40,000/-.   The complainant submits that he asked the opposite party to furnish relevant documents namely; Parent Title Deed, Approval of Town and Country Planning Authority and other permissions obtained from other local authorities etc after paying the advance amount.   The complainant submits that as the opposite party failed to furnish the relevant documents and approval of the local authorities, he lost faith in the opposite party and insisted for the repayment of advance amount.   Inspite of complainant’s demand, the opposite party sent a letter dated:16.03.2010 insisting the complainant to pay the total consideration of Rs.26,30,000/- for the flat 5 A, Tower No.3, 1052 sq. ft. deducting the advance amount.   Thereafter, the complainant’s father went directly to the opposite party’s office and expressed their unwillingness to purchase the apartment in the Lotus Pond Project and demanded for return of the advance amount.  

2.     The complainant submits that the opposite party failed to furnish relevant title deeds and approvals from the local authorities but sent a letter dated:15.11.2015 that if the complainant failed to pay the total sale consideration which warranted them to cancel the booking of the apartment.   The complainant submits that it is the bounden duty of the builder-cum-developer / opposite party to furnish all relevant title deeds, approval / permission obtained from concern authorities for promoting the project, but the opposite party failed to furnish the same and to swindle the advance amount.  The complainant issued legal notice to the opposite party demanding return of the advance amount Rs.40,000/- with 18% dated:27.12.2016 and the same was acknowledged by the opposite party on 28.12.2016 but neither complied nor sent 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.

3.      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 a flat with the opposite party and paid a sum of Rs.40,000/- on 17.01.2009.   Moreover, the cause of action arose on 17.09.2009, the complainant had chosen to file the said complaint in the year 2017 which is barred by Section 24 A of limitation period under Consumer Protection Act, 1986.   The opposite party states that the opposite party never compelled anyone to book flat and they have not distributed any brochures, advertisements etc as have been alleged by the complainant.   As regards the merits of the claim, the opposite party states that no cause of action rests against the opposite party.    The complainant never entered into any agreement and showed any interest towards the project.    Therefore, there is no deficiency in service on the part of the opposite party and hence, the complaint is liable to be dismissed.

4.     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.  Proof affidavit of the opposite party is filed and documents Ex.B1 alone is marked on the side of the opposite party.

5.      The points for consideration is:-

1. Whether the complainant is entitled to get refund of the advance amount of Rs.40,000/- with interest as prayed for?
2. Whether the complainant is entitled to a sum of Rs.5,00,000/- towards compensation for mental agony, harassment, inconvenience, frustration etc with cost as prayed for?

6.      On point:-

Both parties filed their respective written arguments.  Heard their Counsels also.   Perused the records namely; the complaint, written version, proof affidavit and documents.   The complainant pleaded and contended that he booked a flat of 3 BHK with the opposite party on 17.01.2009 by paying an advance amount of Rs.40,000/- as per Ex.A1 & Ex.A3.  But no Sale Agreement was executed by the opposite party.  Further the contention of the complainant is that he asked the opposite party to furnish relevant documents namely; Parent Title Deed, Approval of Town and Country Planning Authority and other permission obtained from other local authorities etc after paying the advance amount.   The Vice President of the opposite party gave his visiting card as per Ex.A2 and pacified the complainant that the documents will be produced at a later point of time nothing to worry about the advance amount paid it will be refunded if the opposite party failed to produce documents.   Since, the documents were not produced after repeated requests and demands, the complainant insisted for return of the advance amount with the opposite party.  Inspite of complainant’s demand, the opposite party sent a letter dated:16.03.2010 insisting the complainant to pay the total consideration of Rs.26,30,000/- for the flat 5 A, Tower No.3, 1052 sq. ft. deducting  the advance amount as per Ex.A3.   Thereafter, the complainant’s father went directly to the opposite party’s office and expressed their unwillingness to purchase the apartment in the Lotus Pond Project and demanded for return of the advance amount.   Immediately, by providing a copy of planning permission issued by the Planning Authority for the period from 07.01.2010 to 06.01.2013 and a copy of Lotus Pond Project Ex.A4 and pacified him but no other vital documents furnished.  

7.     Further the contention of the complainant is that the opposite party failed to furnish the relevant title deeds and approvals from the local authorities but sent a letter dated:15.11.2015 stating that if he failed to pay the total sale consideration, the booking amount will also be forfeited as per Ex.A5 it is arbitrary and illegal on the side of the opposite party.   Further the contention of the complainant is that it is the bounden duty of the builder-cum-developer / opposite party to give all relevant title deeds, approval / permission obtained from concerned authorities for promoting the project, but the opposite party failed to furnish the same and to swindle the advance amount paid by the complainant as he is a defaulter in paying the entire sale consideration amounts to deficiency in service and unfair trade practice.   The complainant issued legal notice to the opposite party demanding return of the advance amount with 18% dated:27.12.2016 as per Ex.A6 and the same was acknowledged by the opposite party on 28.12.2016 as per Ex.A7 but neither complied nor sent any reply.   Therefore, the complainant is constrained to file this case.

8.     The learned Counsel for the opposite party would contend that admittedly, the complainant booked a flat with the opposite party and paid a sum of Rs.40,000/- on 17.01.2009 as per Ex.B1.   But vehemently contended that the complaint is barred by limitation as per Section 24 A of the Consumer Protection Act; is not acceptable because the cause of action arose after the opposite party letter cancelling the booking of flat and forfeited the advance amount paid by the complainant and sent a letter dated:15.12.2015 as per Ex.A5.   Therefore, the complaint is filed well within the period of limitation.  The cause of action is also a continuing one.   Further the contention of the opposite party is that the opposite party never compelled any one to book flat with them not acceptable because admittedly, the opposite party received the advance amount of Rs.40,000/- towards booking.  Further, the opposite party is a promoter of sale of apartment so he becomes the proposer of contract with the purchaser.   The opposite party alone should have been come forward to execute the sale agreement with the complainant / purchaser but the opposite party failed to do the same and shifting the burden on the complainant; is not acceptable either on facts or law and committed grave deficiency in service and unfair trade practice.   Considering the facts and circumstances of the case and evidences, this Forum is of the considered view that the opposite party shall refund the advance amount of Rs.40,000/- with 9% interest p.a. from the date of filing of this complaint to till the date of this order with a compensation of Rs.20,000/- for mental agony and hardship with cost of Rs.10,000/- to the complainant.         

In the result, this complaint is allowed in part.   The opposite party is liable to refund a sum of Rs.40,000/- (Rupees Forty thousand only) along with interest at the rate of 9% p.a.  from the date of filing of this complaint (i.e.) 10.05.2017 to till the date of this order (i.e.)       09.01.2020 to the complainant and to pay a sum of Rs.20,000/- (Rupees Twenty  thousand only) towards compensation for mental agony with cost of Rs.10,000/- (Rupees Ten thousand only) to the complainant.

The above amounts shall be payable within 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 09^th day of January 2020. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1		Copy of phamplet issued by the opposite party
Ex.A2		Copy of visiting card of the Vice President of the opposite party
Ex.A3	16.03.2010	Copy of opposite party’s letter the complainant acknowledging the advance amount paid
Ex.A4	07.01.2010	Copy of planning permission issued by the Town & Country Planning Authority for the Lotus Pond Project
Ex.A5	15.12.2015	Copy of opposite party’s letter the complainant forfeiting the advance amount
Ex.A6	27.12.2016	Copy of legal notice of the complainant’s Counsel
Ex.A7		Copy of acknowledgment card

 

OPPOSITE PARTY SIDE DOCUMENTS:-  

Ex.B1

Copy of booking and allotment form - Model

 

 

MEMBER                                                                                                                                                     PRESIDENT