IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.
Present: HON’BLE THIRU. JUSTICE. R. SUBBIAH , PRESIDENT
TMT. S.M. LATHA MAHESWARI, MEMBER
F.A.No.89/2016
(Against the order passed in C.C.No.153/2011, dated 08.03.2016 on the file of the District Commission, Chennai (South))
TUESDAY, THE 27th DAY OF JULY 2021.
1. DLF Southern Homes P Ltd.,
By its Managing Director,
Old No. 62, New No.113, 3rd Floor,
“ Chalam Towers”
R.K. Salai, Mylapore,
Chennai – 600 004.
2. The General Manager Marketing
“ Chalam Towers”
R.K. Salai, Mylapore,
Chennai – 600 004. Appellants/Opposite Parties
Vs
S. Karthikeyan,
Flat B, Ground Floor,
Plot No.7A JL Apartments,
Kalathumetu Street,
Kottivakkam,
Chennai – 600 041. Respondent/Complainant
Counsel for the Appellants/Opposite Parties : M/s. Aiyor & Dolia, Advocates.
Counsel for the Respondent/Complainant : M/s. A.D. Janarthanan, Advocate.
This appeal coming before us for final hearing today, on 27.07.2021 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following
ORDER
HON’BLE THIRU. JUSTICE R. SUBBIAH, PRESIDENT (Open Court)
1. This appeal has been filed by the appellants/opposite parties 1 & 2 under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the Learned District Commission, Chennai (South) made in C.C.No.153/2011, dated 08.03.2016 by allowing the complaint in part directing the opposite parties 1 & 2 the appellants 1 & 2 herein to refund a sum of Rs.6,17,925/- with 9% interest per annum from 06.08.2008, the date of deposit of the said amount, till the date of payment and also to pay a sum of Rs.25,000/- as compensation for mental agony and hardship undergone by the complainant due to the deficiency in service committed by the opposite parties with default interest of 9% per annum on the compensation amount besides cost of Rs.5000/- to the complainant.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputes Redresssal Commission, Chennai (South).
3. The factual matrix giving raise to the present appeal is as follows:-
The complainant being an employee in Merchant Navy intended to purchase a house in and around Chennai and based on the promises and assurance of quality of houses offered by the opposite parties who are the builders and promoters, he applied for a flat with the opposite parties and paid a sum of Rs.4,00,000/- on 09.07.2008 towards advance payments and the complainant was provisionally allotted a flat in No.C-29085 on Floor 8 in Block 29 in “Garden city DLF OMR” and later it was changed as apartment No.4, in tower No.D3, on floor 8 at Garden City DLF OMR with parking space. Subsequently, the same was changed into apartment No.5 in Tower No.29 in floor No.8 Garden City DLF OMR measuring 1,170 sq ft (total built up area) with one car parking space, inclusive of common area. Afterwards, as per the demand letter, dated 14.07.2008 issued by the opposite parties requesting the complainant to pay the balance of 15% application money, the complainant paid a sum of Rs.2,17,925/- towards cost of the said apartment and thereby he totally paid a sum of Rs.6,17,925/- to the opposite parties. Subsequently, the complainant was given an allotment letter, dated 06.03.2009 and thereafter buyer’s agreement was entered into between the complainant and the opposite parties on 27.05.2009 with regard to the purchase of the said apartment for a total sale consideration o Rs.47,05,755/-. Subsequently, the proposed original cost of the said flat was reduced from Rs.47,05,755/- to Rs.39,40,575/- due to recession. In the month of September 2009, without commencing construction work, the opposite parties sent a letter dated 21.09.2009 to the complainant demanding for payment of Rs.6,56,621.7 (37.5% of apartment cost less the amount paid by the complainant)- on or before 10.10.2009 followed by an another letter, dated 22.12.2009 demanding to pay a further a sum of R.9,26,665/- as due as on 05.01.2010 which act of the opposite parties are not just and proper and hence this act of the opposite parties amounts to deficiency in service on their part, subsequently, the opposite parties issued another letter, dated 26.12.2009 to the complainant stating that the letter, dated 22.12.2009 was inadvertently sent by mistake and requested the complainant to ignore the same and further they expressed regret for the inconvenience caused to the complainant. Since the opposite parties had not started the construction of the proposed flat, the complainant demanded refund of money paid by him through NRE account with inertest as per the said agreement. Since the opposite parties failed to refund the same with interest, the complainant approached the District Consumer Commission, Chennai (South) with a consumer complaint claiming refund of Rs.6.17,925/- with interest and also for compensation of Rs.7,00,000/- for mental agony and hardship undergone by the complainant due to the deficient acts of the opposite parties committed against the complainant, with cost of Rs.20,000/-.
4. The complaint was resisted by the opposite parties by filing their joint written version wherein they have contended that the complaint is not maintainable before the Consumer Commissions as the complainant is not a consumer when he did not adopt the arbitration clause envisaged in the agreement entered into between the complainant and the opposite parties. The opposite parties have not abandoned the said project however it was deferred due to some problems. It is true that the complainant paid a sum of Rs.6,17,925/- with the opposite parties towards the purchase of the said apartment. The opposite parties had sent two letters, dated 10.06.2009 and 26.12.2009 to the complainant requesting him to choose another flat which was under construction in lieu of the flat which was already allotted to him since it was deferred due to some problems. But, the complainant did not come forward to opt the alternate flat offered by the opposite parties and therefore it was presumed that the complainant did not want to choose the alternate flat but wished to have the flat which was originally allotted to him previously and therefore it was decided that the complainant is liable to pay the costs of the flats as per the schedule mentioned in the agreement and therefore several reminders were sent to the complainant to pay the balance amount but he failed to pay the same. Even though there is no provision for refund of the amount, as a good will gesture, the opposite parties refunded Rs.6,17,925/- vide cheque, dated 14.03.2011 to the complainant without any interest thereon and the same was intimated to the complainant vide email dated 17.03.2011, however, the same was not accepted by the complainant and hence there is no deficiency in service and unfair trade practice on the part of the opposite parties and the complaint is liable to be dismissed.
5. Based on the above pleadings and evidences adduced by both parties, the learned District Consumer Commission had recorded the findings as the opposite parties had committed deficiency in service and allowed the complaint by directing them jointly and severally to refund Rs.6,17,925/- with 9% interest from 06.08.2008 till the date of payment and also to pay a sum of Rs.25,000/- as compensation for mental agony with default interest at the rate of 9% per annum with cost of Rs.5000/- to the complainant.
6. Aggrieved over the order of the District Commission, the opposite parties have come before this Commission by way of this appeal stating that the District Commission failed to consider the case properly when the complainant deliberately remained quiet for two years without expressing his intention with regard to his option for alternate apartment offered by the opposite parties and hence the order of the District Commission has to be set-aside and the complaint is to be dismissed by allowing this appeal.
7. The point for consideration is whether the order of the learned District Commission, Chennai (South) dated 08.03.2016 passed in C.C.No.153/2011 is to be set aside?
8. Point:- During the enquiry before the learned District Commission, the complainant filed his proof affidavit and marked Exhibits A1 to A19 and the opposite parties have also filed their proof affidavit and marked Exhibit B1 which is a copy of resolution passed by the Board of Directors of the opposite parties
9. We have heard the submissions made by both sides and perused the materials placed on record. As we have dealt with the factual submissions advanced by the learned counsel for both sides at required length, we refrain from dealing with the same any further in this order. However, certain facts which are absolutely germane and necessary are examined and taken note of, for the purpose of disposal of this case.
10. The complainant respondent herein in his written argument contended that he was provisionally allotted a property situated in C 29085 on Floor 8 in Block 29 in “Garden City DLF OMR” for which the complainant paid a sum of Rs.4,00,000/- on 09.07.2008 towards advance amount and on such payment the complainant was initially allotted Apartment No.4 and thereafter the opposite parties voluntarily changed the apartment as No.5 in Tower No.D3 and thereafter the same was changed into Tower 29 on the floor No.8 in Garden City DLF OMR” measuring 1170 sq.ft with one car parking space inclusive of common areas as per the allotment letter, dated 15.07.2008 issued by the opposite parties and subsequently the opposite party demanded 15% of application money and accordingly the complainant paid a sum of Rs.2,17,925/- on 06.08.2008 and thereby the complainant totally paid a sum of Rs.6,17,925/- and the same was also acknowledged by the opposite parties. As the construction work of the said apartment was not started, the complainant was offered to choose an alternative apartment in one of the towers taken up on priority construction and as the flat offered by the opposite parties was of lesser area than the flat already allotted to him, the complainant was not interested to purchase the same, instead he demanded refund of the advance amount of Rs.6,17,925/- paid by him with interest. But the opposite parties have not chosen to refund the amount despite several requests made by the complainant for refund of advance amount as early as on 20.03.2011. On the other hand, they had sent an evasive reply citing unconvincing reasons under Ex A15 letter dated 15.03.2011 and the reply was also silent about the interest payable to the complainant. As per clause 15 of the buyer’s agreement, the complainant is entitled for interest amount. But, the opposite parties have not stated anything about the interest in their reply letter and further they did not come forward to pay the interest thereon and hence according to the complainant, the said act of the opposite parties would clearly establish their deficiency in service and unfair trade practice committed against the complainant and due to this act, the complainant suffered loss, mental agony, torture and hardship for which the complainant is entitled to get compensation from the opposite parties.
11. Whereas, according to the opposite parties, they were ready to construct the apartment and hand over the flat to the complainant but due to certain problems they had deferred the construction work. It is a further contention of the opposite parties/ appellants that initially an apartment was allotted in flat No.5 in Tower No.29, in floor No.8, Garden City DLF OMR measuring 1,170 sqft (total built up area) with one car parking space, inclusive of common area to the complainant but due to certain reasons, construction of said flat was deferred and even though they have offered another apartment in one of the towers taken up for priority construction which were scheduled to be built and delivered by April to June 2011, the complainant did not accept the offer. Therefore, according to the counsel for the appellants/Opposite parties, it is not as though they were not ready to deliver any flat to the complainant at all and hence the question of deficiency in service does not arise on the part of the opposite parties.
12. But, we find from the evidences on record that the opposite parties have not commenced the construction of apartment at all. A buyer cannot be made to wait perpetually to achieve his object of taking delivery and possession of a fully constructed flat as per the specifications contained in the agreement for sale. If the fully constructed flat is not delivered as per the terms specified in the agreement, certainly the said inordinate delay amounts to anxiety and mental agony leading to loss of confidence to realise his ambition of securing an apartment of his own. Therefore, certainly there is deficiency in service on the part of the opposite parties as alleged by the complainant and on such circumstances, the opposite parties ought to have refunded the advance amount with interest when a request was made by the complainant whereas in the instant case, the opposite parties by keeping the money with them, made the complainant to run from pillar to post to get his money back and therefore the complainant was left with no other option except to approach the District Consumer Commission to get his grievances redressed and the District Commission has allowed the complaint after proper appreciation of all the submissions made by both sides and evolving all the evidences put forth by both parties and passed an award in favour of the complainant by granting the reliefs as stated supra. On perusal of the above order, we do not find any error or infirmity in the findings of the District Commission and therefore there is no need to interfere with the findings of the District Commission.
13. However, having taken into account all of the above facts and circumstances of the case, we are of the considered opinion that the interest rate of 9% per annum awarded on the advance amount of Rs.6,17,925/- refundable to the complainant appears to be on higher side and therefore we are inclined to reduce the same from 9% to 6% per annum. Furthermore, the award of compensation of Rs.25,000/- towards mental agony and hardship, in our view, also seems to be on higher side and hence the same also to be reduced to Rs.12,500/- and the rate of interest imposed on the above amount is also to be reduced from 9% to 6% per annum. Apart from the above modifications, the rest of the order of the District Commission is confirmed. The point is answered.
14. In the result, the appeal is allowed in part with the following modifications.
a) The interest rate of 9% per annum awarded on Rs.6,17,925/- is reduced to 6% per annum,
b) The compensation amount of Rs.25,000/- awarded for mental agony and hardship is also reduced to Rs.12,500/-and the interest rate of 9% per annum awarded on the amount stated supra is also reduced to 6% per annum.
c) In other respects, the order of the District Commission is confirmed.
d) There is no order as to costs in this appeal.
S.M. LATHA MAHESWARI, R. SUBBIAH,
MEMBER. PRESIDENT.
Index: Yes/No
TCM/SCDRC/Chennai/Orders/Jul/2021
