Tamil Nadu

South Chennai

CC/62/2014

M/s.Malika Nanda - Complainant(s)

Versus

New Chennai Township Pvt. Ltd., - Opp.Party(s)

M.Aravind Subramaniam

08 Oct 2016

ORDER

   Date of Filing :   21.01.2014

                                                                      Date of Order :   08.10.2016

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM,CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

            DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

            

C.C.NO.62/2014

SATURDAY THIS  8^TH DAY OF OCTOBER 2016

 

Mrs. Malika Nanda,

Flat B Block 2,

Harini Apartments,

Ramapuram,

Chennai 600 089.                                                     ..Complainant

                                              ..Vs..

 

New Chennai Township Pvt. Ltd.,

“NCTPL AXIS”,  No.4/318,

Rajiv Gandhi Salai,

Kottivakkam,

Chennai 600 041.

Rep. by its Manager,                                           ..Opposite party.    

 

 

For the Complainant        :   M/s. M. Aravind Subramaniam & 

                                         C.K. Lavanyavathi   

For the opposite party     :   M/s. K. Rajasekaran Associates  

 

 

Complaint under section 12 of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite party  to repay the amount of Rs.1,80,090/- and registration amount of Rs.50,000/- with interest  and also to pay a sum of Rs.2,00,000/- as compensation  and Rs.25,000/- as cost of the complaint. 

ORDER

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

The complainant submit that  he paid a sum of Rs.50,000/- towards initial booking dated 05.09.2011, for allotment for the said residential flat for lease acknowledgment was also given by opposite party.  The complainant also paid, subsequently on 17.10.2011 Rs.1,80,090/- towards the first installment  to the opposite party and an agreement to lease, dated 26.03.2012 was entered into between complainant and opposite party.    As per  agreement the opposite party has to complete the construction of the flat and to lease out the same by executing registered lease agreement and also to deliver the possession of the flat, in December 2013.  Despite of several demands made by the complainant, the opposite party without initiating steps for the  construction of the work  of the said apartment  had sent letter dated 26.08.2013,  stating that the work has not been commenced and delay in proceeding the construction of the said flat was due to want of final DTCP approval for the project.  Accordingly the complainant issued a legal notice, to the opposite party seeking refund of the amount, paid towards the said agreement for getting residential flat for lease.  Whereas the opposite party neither replied nor refund the said amount. As such, the opposite party has committed deficiency of service and unfair trade practice which caused mental agony and hardship to the complainant.  As such the complainant sought for to repay the amount of Rs.1,80,090/- and registration amount of Rs.50,000/- with interest  and also to pay a sum of Rs.2,00,000/- as compensation  and Rs.25,000/- as cost of the complaint. 

Written Version of opposite party is  in briefly as follows:

2.     The opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.    All the dispute arising in connection with the agreement that have not been amicably settled shall be referred to Arbitration.  Each of the parties is entitled to appoint one Arbitrator and the presiding Arbitrator shall be appointed by the two such arbitrators.  The arbitration shall be as per the provision of Arbitration and Conciliation Act 1996.  The arbitration shall be  conducted in the English language and the venue of such arbitration shall be in Chennai, India.   The cost shall be determined by the Arbitrator.    Since the complainant being party to the said agreement has raised a dispute in connection with the  said agreement on the basis of non performance of the obligations by NCTPL, the dispute has to be referred to Arbitration.  On this ground also the complaint filed by the complainant is liable to be dismissed. 

3.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A7 were marked on the side of the complainant.   Proof affidavit of  opposite party filed and no document was marked on the side of the opposite party. 

4.      The points that arise for consideration are as follows:-

1.   Whether the opposite party had committed  deficiency of

 service as alleged in the complaint?

 

2.   Whether the complainant is  entitled for the relief sought for

in the complaint?  If so to what extent ?

 

 

5.    POINTS 1 and 2 :

Perused the complaint filed by the complainant, written version filed by the opposite party and the proof affidavit filed by complainant and opposite party, the documents Ex.A1 to Ex.A7 filed on the side of the complainant and considered the arguments of the learned counsel appearing for the complainant and for the opposite party.

6.     There is no dispute that the complainant paid a sum of Rs.50,000/- towards initial booking as per receipt, Ex.A1 dated 05.09.2011, and necessary approved letter, dated 07.09.2011, Ex.A2 for allotment for the said residential  flat for lease was also given by opposite party.  The complainant also paid, subsequently on 17.10.2011 Rs.1,80,090/- as the statement of bank account filed by the complainant as Ex.A7,  towards the first installment  to the opposite party and an agreement to lease, Ex.A3 dated 26.03.2012 was entered into between complainant and opposite party.

7.     The complainant has raised grievance in this complaint that as mentioned in the agreement the opposite party has to complete the construction of the flat and to lease out the same by executing registered lease agreement and also to deliver the possession of the flat, in December 2013.  On the basis of the said promise made by the opposite party, the complainant has entered into an agreement to get a  residential flat on lease  with bonafied expectation.  But the opposite party without initiating steps for the  construction of the work  of the said apartment  had sent letter dated 26.08.2013, Ex.A4, stating that the work has not been commenced and delay in proceeding the construction of the said flat was due to want of final DTCP approval for the project. On the said circumstances complainant being disappointed on the promise made by the opposite party, has sent legal notice, to the opposite party seeking refund of the amount, paid towards the said agreement for getting residential flat for lease.  Whereas the opposite party neither replied nor refund the said amount, as such, the opposite party has committed deficiency of service and unfair trade practice and the complainant has filed this complaint  seeking refund of the said amount and compensation of Rs.2,00,000/- against the opposite party. 

8.     Whereas the opposite party has resisted the complaint by saying that the complaint itself not maintainable before this forum, as per the clause mentioned in the agreement, any dispute arise between the parties it has to be referred before arbitration,  without adopting such procedure, complainant approached this forum further there is a clause in the agreement that any delay caused in completing the construction and handing over the possession of the residential flat by executing the registered lease deed, due to reasons beyond the control of the parties under “force of majeure”.    As such the delay is due to want of final DTCP approval, which is beyond the control of opposite party, as such, this complaint filed by the complainant is not maintainable and is not entitled for any relief sought in the complaint.  Hence complaint is to be dismissed.

9.     However considering the facts and circumstances of the case, getting DTCP approval for the construction of the proposed apartment  by the opposite party is a pre required condition in commencing of the business of the said project of the opposite party. On the contention of the opposite party the fact reveals  that the opposite party have started booking of flat for  the  lease out and has also by collecting initial installment for the construction of the said flats to be leased out and entered into an agreement for the same, with the parties like complainant, which itself considered to be not a fair trade practice adopted by the opposite party.  Further the said fact of not obtaining the necessary DCTP approval was also not  informed to the proposed lessee (Complainant)  at the time of entering agreement.  Therefore we are of the considered view that the above act of the opposite party having not obtaining proper and necessary  DCTP approval for the construction of the apartments, entered into an agreement with the complainant by collecting initial payment of the construction of the flat with promise to deliver the constructed flat during or after December 2013, subject to the completion of construction of apartment upon execution and registration of lease deed is amounts to unfair trade practice.

10.    Further the submission of the complainant that the complainant has entered into an agreement Ex.A3 for getting lease of the flat, with the expectation that the flat will be constructed and handed over within the stipulated time as mentioned in the agreement is acceptable as bonafide.  Further on the receipt of the letter sent by the  opposite party Ex.A4 dated 26-08-2013, the complainant was disappointed knowing that the opposite party have without disclosing the fact of not getting proper DCTP approval have entered into an agreement and a initial  payment of Rs.2,30,090/- was made.  When asked for refund of the amount  by sending legal notice to the opposite party, the opposite party having receipt of the same neither replied nor repaid the amount which amounts to deficiency of service on the part of the opposite party is also acceptable. 

11.    Further, we are of the considered view that though there is an arbitration clause as mentioned by the opposite party in the agreement Ex.A3 it is not bar to the complainant to approach this forum against the opposite party for the redressal on the alleged unfair trade practice and deficiency of service committed by the opposite party.  The Hon’ble Goa State Consumer Disputes Redressal Commission, Panaji,  decision  cited by the learned counsel  of the complainant in support of this contention, reported in

2006 (2) CPR 57

Shri Nikhil Ramkrishna Jambaulikar

..Vs..

Shri Girdharlal Mohanlal Gangani

Complaint No. 38/2000

 

which is held that

     “An arbitration clause in agreement will not be a bar to entertainment of complaint by Consumer Forum”.  Therefore the contention  raised by  the opposite party in this regard  is to be rejected as not sustainable.”

 

As per the above discussion, we are of the considered view that the unfair trade practice and deficiency of service attributed against the opposite party in this complaint is proved and the opposite party is liable to refund the amount paid by the complainant towards agreement of getting lease of the residential flat a sum of Rs.2,30,090/- with interest at the rate of 12%p.a. from the date of the agreement Ex.A3 i.e dated 26.03.2012 to till the date of payment and also to pay a sum of Rs.5000/- as litigation expenses to the complainant.  Since interest for the said amount has been ordered, and considering the facts and circumstances of the case, we are not inclined to order for payment of compensation.  Accordingly the points 1 and 2 are answered.

In the result, this complaint is partly allowed.  The opposite party is directed to pay a sum of Rs.2,30,090/-  (Rupees Two lakhs thirty thousand and ninety only) with interest at the  rate  of   12% p.a.  from 26.03.2012 to till the date of payment and also to pay a sum of Rs.5000/- (Rupees Five thousand only) as cost to the complainant, within six weeks from the date of this order.

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  8^th    day  of  October   2016.

 

MEMBER-I                    MEMBER-II                             PRESIDENT.

Complainant’s Side documents :

Ex.A1-  5.9.2011   - Copy of receipt from opposite party to complainant.

Ex.A2- 7.9.2011    - Copy of allotment letter from the opposite party to complainant.

Ex.A3- 26.3.2012   - Copy of agreement of lease between compliant and opposite party.

Ex.A4- 26.8.2013  - Copy of letter from opposite party to complainant.

Ex.A5- 5.9.2013    - Copy of legal notice.

Ex.A6- 11.9.2013   - Copy of Ack. Card.

Ex.A7- 19.10.2011 – Copy of Statement of account.

                    

Opposite parties’ side documents: -    

 

.. Nil..

 

MEMBER-I                    MEMBER-II                             PRESIDENT.