BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
BEFORE Hon’ble Justice R. SUBBIAH PRESIDENT
Tmt. Dr. S.M.LATHA MAHESWARI MEMBER
CC.NO. 74/2018
DATED THIS THE 3rd DAY OF AUGUST 2021
Dr. M.B. Vedavalli
W/o. G.R.Srinivasan
No.3/2, VOC Apartments
50th Street, Ashok Nagar
Chennai – 600 083 ....Complainant
Vs
N. Ravindran, Proprietor
M/s. Fairdeal Construction
“Jasmine”, 2nd Floor, Plot No.5
‘AIBEA’ Nagar, 4th Main Road
Thiruvanmiyur, Chennai – 600 041 ....Opposite party
Counsel for complainant : M/s Sampathkumar & Associates,
Advocates
Counsel for opposite party : Exparte
This complaint coming before us for hearing finally on 3.8.2021 and on hearing the arguments of counsel appearing for complainant and upon perusing the material records this Commission made the following order in the open court:
ORDER
Justice R. SUBBIAH, PRESIDENT (Open court)
1. This complaint has been filed under Sec.17 of Consumer Protection Act 1986, against the opposite party claiming a sum of Rs.20,00,000/- towards refund alongwtih interest @ 18% p.a., till payment in full and compensation of Rs.25,00,000/- and cost.
2. The case of the complainant in brief is as follows:
The opposite party proposed to construct flats at Door No.193, Lake View Road (Erikkarai Road), West Mambalam, Chennai – 600 033. The complainant entered into an agreement with the opposite party who is acting on behalf of the owner of the land, for 400 sq.ft., undivided share of land, for a total sale consideration of Rs.28,00,000/- and paid a sum of Rs.10,00,000/- as advance by way of cheque No.000014 dt.27.4.2015 drawn on Bank of Baroda, West Mambalam Branch, and also entered into a Construction-cum-Sale Agreement in respect of residential flat as referred to above, for a sum of Rs.1,48,00,000/- and paid another sum of Rs.10,00,000/- by way of cheque No.157304, dt.19.4.2015 drawn on Punjab National Bank, West Mambalam Branch, Chennai – 600 033. As per the agreement the opposite party had to deliver the possession within 18 months i.e. on or before 22.10.2016. Moreover as per clause No.4 of the Construction Cum Sale Agreement, the opposite party had agreed to produce necessary permission for the construction of stilt + 4 floors in the above referred property from the authorities concerned. But the opposite party had constructed only a shell in the proposed complex unauthorisedly, resulting in CMDA sealing the building for floor violation. It is evident that the opposite party had not obtained required permission from the CMDA. Till this date the opposite party has not shown the original approved plan from CMDA / Corporation enabling him to construct a required flat for the complainant. The complainant is in the fag end of her life and her husband is also aged 85 years. Both of them super senior citizens were in the fond hope of getting the nice flat and enjoy the same till their life time. But the opposite party shattered their dreams in not handing over the flat as agreed. Therefore claiming refund of the advance amount paid, the complainant issued a legal notice to the opposite party on 20.1.2018. Though the said notice was received, the opposite party did not care either to reply or to return the advance amount to the complainant. Therefore, alleging deficiency in service on the part of the opposite party, the complainant filed this complaint claiming for refund of the amount paid alongwith compensation.
3. The opposite party, having received notice, though appeared in person, neither filed their reply version, nor was represented subsequently. Therefore, after granting sufficient opportunities, was called absent and set exparte.
4. The complainant filed her proof affidavit alongwith five documents which are marked as Ex.A1 to A5. Written arguments of the complainant were also filed.
5. We have heard the learned counsel for the complainant, perused the documents filed in support of the complaint, and passed the following order in the open court:
6. Points for consideration:
1. Whether deficiency in service on the part of the opposite party is proved?
2. If so, what relief the complainant is entitled to?
7. POINT NO.1
The complainant had booked a flat alongwith undivided share of land with the opposite party and paid a total sum of Rs.2000000/- as advance by two separate payments for the purchase of 400 sq.ft undivided share of land and for the purchase of residential flat. The grievance of the complainant is that having entered into construction cum sale agreement the opposite party had not obtained the necessary permission for construction of stilt + 4 floors, resulting in CMDA authorities sealing the building for floor violation. Though as per agreement the opposite party ought to have handed over the flat within 18 months, i.e., on or before 22.10.2016, the same was not handed over till date. Moreover, the building itself has been sealed by CMDA for unauthorized construction.
8. In support of her booking of the flat, complainant had produced two agreements as per Ex.A1 and A2, dt.23.4.2015. Ex.A3 is a letter sent from Chennai Metropolitan Development Authority to the opposite party, which establishes that the application for Planning Permission was returned unapproved. Therefore deficiency in service on the part of the opposite party is proved undoubtedly. Though legal notice caused by the complainant to the opposite party had been received by them, the opposite party had neither replied nor refunded the advance amount received. The agreement under Ex.A1 and A2 proves the payment made by the complainant @ Rs.20,00,000/- towards advance. Therefore, the complainant had clinchingly proved her case that there is deficiency in service on the part of the opposite party. Accordingly, the complaint is allowed. Point No.1 is answered in favour of the complainant.
9. POINT NO.2:
The complainant had claimed for refund of the advance amount @ Rs.20,00,000/- alongwith interest @18% p.a., and compensation of Rs.25,00,000/-.
10. With regard to the claim for refund of the advance amount, it is no doubt the complainant is entitled to, however, we feel the claim of interest @18% is usurious, and we hereby fix the same at 9% p.a., which shall be ordered to be paid from the date of payment, till realisation.
Since the deficiency in service on the part of the opposite party is proved, the complainant is entitled to compensation. The complainant had paid the advance amount @ Rs.20,00,000/-. Hence, we are of the considered opinion that the claim of Rs.25,00,000/- towards compensation is on the higher side. Therefore, considering the facts and circumstances of the case, awarding a sum of Rs.2,00,000/- (Rupees Two Lakhs only) towards compensation would meet the ends of natural justice. Point No.2 answered accordingly.
11. In the result, the complaint is allowed in part. The opposite party is directed to refund the advance amount of Rs.20,00,000/- (Rupees twenty lakhs only) alongwith interest @ 9% p.a., from the date of payment till realisation, alongwith compensation of Rs.2,00,000/-(Rupees two lakhs only) and cost of Rs.10,000/-. Time for payment one month, failing which the complainant is at liberty to invoke Sec.72 of Consumer Protection Act 2019.
S.M.LATHAMAHESWARI R SUBBIAH
MEMBER PRESIDENT
Exhibits filed on the side of complainant
A1 23.04.2015 Agreement for sale between owners of land, opposite party and
Complainant
A2 “ Construction cum sale agreement
A3 19.05.2015 Letter by CMDA to the opposite party requesting to handover
Possession
A4 03.10.2016 Letter by complainant to OP
A5 20.01.2018 Legal notice by complainant’s counsel to OP
S.M.LATHAMAHESWARI R SUBBIAH
MEMBER PRESIDENT
INDEX : YES / NO
Rsh/d/rsj/ Open court
