Tamil Nadu

South Chennai

CC/244/2013

Mr.Ma Liang Suin Jeffery - Complainant(s)

Versus

Sare Jubilee Shelters Pvt. Ltd., - Opp.Party(s)

B.Antony Royston

15 Dec 2021

ORDER

                                                                                                                                                                 Date of Complaint Filed: 22.07.2013

                                                                                                                                                                 Date of Reservation: 19.11.2021

                                                                                                                                                                 Date of Order: 15.12.2021

                                                                                                       

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH)

 

Present:

 

                  Thiru. R.V.R. Deenadayalan, B.A., B.L.                                  : President

                 Thiru. T. Vinodh Kumar, B.A., B.L.                                           : Member

 

CONSUMER COMPLAINT No.244/2013

 

WEDNESDAY, THE 15^th DAY OF DECEMBER 2021

                                

 Mr.Ma Liang Suin Jeffery,

S/o.Dr.Ma Yau Chang,

Old No.12, New No,27, Aravamudhan Garden Street,

Egmore, Chennai – 600 008.                                                                   .. Complainant.                                  

                                                                                      ..Versus..

1.M/s. Sare Jubilee Shelters Private Limited,

   Rep by its Managing Director,

   1-8, 4^th Floor, Sintron Square,

   Dr.VSI Estate, Thiruvanmiyur, OMR,

   Chennai -600 041.

 

2.M/s.VIP Housing &Propertiees,

    No.26B, Balaji Bhavan, I Floor,

    48^th Street, 9^th Avenue, Ashok Nagar,

    Chennai -600 083.                                                                         ..  Opposite parties.

******

Counsel for the complainant                            : M/s.B.Antony Royston, Advocate,

Counsel for the 1^st opposite party                   : M/s.P.S.Rathinamani, Advocate.

Counsel for the 2^nd opposite party                  : Ex-Parte.

 

 

            On perusal of records and after having heard the arguments complainant we delivered the following:

ORDER

Pronounced by the President Thiru. R.V.R. Deenadayalan, B.A., B.L.

 

            The complainant has filed this complaint under section 12 of the Consumer Protection Act, 1986 for seeking direction to return back a sum of Rs.9,00,000/- with interest @ 18% per annum from the date of receiving and to pay a sum of Rs.10,00,000/- towards compensation  and with cost.

2. In order to prove the case, on the side of the complainant proof affidavit submitted as his evidence, documents Ex.A1 to Ex.A15 were marked, written argument filed and also oral argument adduced.   While so, on the side of the 1^st opposite party proof affidavit submitted as his evidence, documents Ex.B1 Ex.B14 were filed, written argument filed and not adduced oral argument on his sides. Though notice sent by this commission to the 2^nd opposite party and he has not turned up before this commission even after acknowledging the notice, hence he was set ex-parte.

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

The complainant has booked a flat in unit No.A-214, Type 2BHK, Phase – 1, at Crescent Parc- Dewy Terraces, OMR, Chennai for total sale consideration of Rs.20,19,703/- and sale cum construction agreement was entered on 11.10.2010. The payment schedule was set out by the opposite party, to pay the construction linked works in 9 instalments and the allied charges in 4 instalments.  The instalments were required to be paid in various stages of the building. The 1^st opposite party introduced the 2^nd opposite party as their marketing and collection agent.

            4. The 1^st opposite party through the 2^nd opposite party has collected a sum of Rs.4,50,000/- through three cheques even before the commencement of the Agreement and collected a sum of Rs.2,30,000/- by means of cash vide receipt No.10777 dated 26.11.2010 and thereafter collected a sum of Rs.2,20,000/- by means of cheque vide receipt No.10778 dated 26.11.2010 and the 2^nd opposite party has also issued a cash receipt dated 26.11.2010 for the entire payment of Rs.9,00,000/-

            5. Though the complainant was bound to pay 10% at the time of booking and 10% at the time of execution of agreement, he was forced to shell out Rs.4,50,000/- even before execution of agreement. The 1^st opposite party sent the complainant a demand letter dated 15.04.2011, wherein the 1^st opposite party had given credit only for a sum of Rs.6,71,667/- as against the payment of Rs.9,00,000/- paid by the complainant to the 2^nd opposite party, for which the 2^nd opposite party had also issued to valid receipt. The complainant suspected some foul play by the 1^st opposite party as he was not given due credit to his payments.  Though the complainant contacted the opposite parties several times, they were not attended. Hence this complaint is filed.

6. Written version of the 1^st opposite party in brief:-

            It is admitted that the complainant has booked a flat for total consideration of Rs.20,19,703/- with the 1^st opposite party.  The 2^nd opposite party is only a marketing person and the payment mode to the 2^nd opposite party by way of cheque No.546427 dated 10.08.2010 drawn on ICICI Bank, Purasawalkam branch for a sum of Rs.75,000/-; Cheque No.451756 dated 08.10.2010 drawn on Punjab National Bank, Purasawalkam branch for a sum of Rs.2,00,000/-; Cheque No.546516 dated 13.10.2010 drawn on ICICI Bank, Purasawalkam branch for a sum ofR.1,75,000/-; Cheque No.451760 dated 06.12.2010 drawn on Punjab National Bank, Purasawalkam branch for a sum of R.2,20,000/-; DD No.149881 dated 03.02.2011 drawn on Axis Bank, Anna Nagar branch for a sum of Rs.1,667 are all admitted. The 1^st opposite party has issued a valid receipt for the above said payment in compliance with clause 2.2 of the said agreement as and when receipt of the same from the complainant.  With regard to the averment that the 1^st opposite party through 2^nd opposite party paid a sum of Rs.4,50,000/- even before the commencement of the agreement is denied as false. The 2^nd opposite party collected a sum of Rs.2,30,000/- by way of cash vide receipt No.10777 dated 26.11.2010 and 2^nd opposite party also issued a cash receipt dated 26.10.2010 for the entire payment of Rs.9,00,000/- are all not within the knowledge of the 1^st  opposite party and hence cannot be countenanced.

            7.  It is pertinent to note that as per the agreed terms and conditions of the agreement in clause 2.2, all payments are to be made by Cheque/Demand draft payable in Chennai/Delhi and hence any payment made by other modes is unsustainable and in violation of the agreed terms and conditions of the agreement.  It is also stated that the payment made by way of cash exceeding Rs.20,000/- is against Section 40A(3a) of the Income Tax Act, 1961 and hence any payment made in cash is in violation of the legal principles of law. Time is the essence of the contract.  If the complainant commits a breach of the payment schedule of any of the payments due and payable there under then the 1^st opposite party shall claim the amounts in default of arrears with the interest at the rate of 18% per annum payable from the date of default up to the date of payment by virtue of clause 2.4.1.  Clause 2.4.2 states that if the breach further continues beyond two consecutive months, the 1^st opposite party shall have right to terminate this agreement in accordance with clause 16 in the agreement and sale consideration as earnest money.  The earnest money shall be adjusted form the payments already made by the complainant.  

            8. The 1^st opposite party is obliged to execute and registered agreed undivided share of the land in favour of the purchaser of apartment only upon receipt of 90% of the total sale consideration along with accrued interest as stated in clause 2.4.1 of the agreement.  However the complainant has failed to do so. The 1^st opposite party sent repeated reminders vide 13.1.2010, 21.01.2011, 25.02.11, 15.03.2011, 21.09.2012 and reminder notice dated 06.08.2011, 18.04.2013 despite the same the complainant failed to pay the due amount within the stipulated time though time is considered as the essence of the contract.  Hence in the above circumstances, on the expiry of fifteen days written notice to the complainant to remedy and non-compliance with ten payment schedule or breach of any of the terms of the agreement and the default/breach remaining un-remedied for such 15 day period, the 1^st opposite party may terminate the agreement as per clause 16.1 of the agreement and as per clause 16.2 of the agreement, upon termination of the agreement, the 1^st opposite party shall be freely entitled to re-allot the apartment and the undivided share of the land to any third party. Hence as per the agreed terms and condition of the agreement the 1^st opposite party is entitled to 10% of the total consideration as forfeited by the plaintiffs as earnest money.

            9.  The 1^st opposite party is ready to fulfil its obligations on clearing the entire outstanding due amounts with interest as per the agreed terms and conditions of the agreement or in the alternative to cancel the allotment and repay the advance amount of forfeiture of 10% of the total sale consideration as earnest money as per the agreed terms conditions of the agreement. The complainant is not entitled to any relief much less the relief of refund of advance amount together with interest.  The interest demanded by the complainant is exorbitant and usurious. Hence it is requested to dismiss this complaint.

10.The points for consideration are:-

            1) Whether there is any deficiency in service on the part of the opposite parties?

2) Whether the complainant is entitled to get reliefs as claimed in the complaint?

3) To what relief the complainant is entitled to?

 

11. Point No.1:-

                Ex.A1 is the sale cum construction agreement dated 11.10.2010 in between the complainant and the opposite party and Ex.B2 also same.  According to the complainant that he has paid 4,50,000/- through cheques, even before the commencement of the agreement.  The opposite party has admitted that on 10.08.2010 a sum of Rs.75,000/-, on 08.10.2010 a sum of Rs.2,00,000/- and on 13.10.2010 a sum of Rs.1,75,000/- given by the complainant and therefore there is no dispute in this records.

            12. The complainant states that he has paid a sum of Rs.2,20,000/- on 26.11.2010 but he has not paid Rs.2,20,000/- on that date, he has paid Rs.2,20,000/- on 06.12.2010 drawn on Punjab National Bank and the cheque number is 451760.  Further the complainant has not stated that he has paid a sum of Rs.1667/- through DD on 03.02.2011 drawn on Axis Bank and these are all evidence of the receipt given by the opposite party which all marked by the opposite party. A dispute amount is only a sum of Rs.2,30,000/-by cash for that the 1^st opposite party has not given any receipt.  On the other hand the 2^nd opposite party alone given a receipt on 26.11.2010 itself including the cheque payment dated 6.12.2010.  The complainant has failed to furnish the remaining receipts and therefore the receipt issued by the 2^nd opposite party is having some doubts.

            13. Further the complainant failed to furnish the payment of Rs.1667/- DD No.149881 dated 03.02.2011. Further as stated by the 1^st opposite party clause 2.2 of the agreement it is specifically mentioned “The party of the second part has paid the party of the First part an advance on the date of signing this agreement as stated in the payment schedule and the balance payments shall also be paid in the manner stipulated therein.  All the payments are to be made by Cheque/Demand Draft payable in Chennai/Delhi.  All the payments made as per the payment schedule shall be supported by valid receipts issued by the part of the first part”.

                        14. The opposite party submitted as per agreement in clause 2.4.2 “if the breach continues beyond(2) two months, terminate this agreement in accordance with clause 16below under the such circumstances, the party of the first part shall be entitled to consider 10% of the total sale consideration as forfeited by the part of the second part as earnest money.  The earnest money shall be adjusted from the payments already made by the party of the second part.  In the event the payments advanced by the party of the second part are insufficient towards satisfaction of the abovementioned sum/earnest money, the party of the first part shall be entitled to demand/claim and cover the difference amount due and payable from the part of the second part”. Therefore the opposite party has claimed 10% of the total consideration. 

            16. The complainant filed this complaint in the year 2013 itself seeking to return of the advance amount.  The opposite party has admitted to return advance amount after deducting 10% of total sale consideration but he has not done so, which amounts to deficiency in service.  The 2^nd opposite party issued a receipt for Rs.2,30,000/- to the complainant on 26.11.10 and he has not appeared before this commission to rebut the same.  Hence the 2^nd opposite party has committed deficiency in service on his part.  Accordingly point No.1 is answered.

17. Point Nos.2&3:-

            It is admitted fact that the complainant has paid a sum ofRs.6,71,667/-.  Even though the agreement says 10% total construction amount is to be deducted if the complainant has not complete his part of the performance.  Actual amount of construction cost is only 14,00,676/- and the remaining amount that is land cost and allied charges will not be taken into the total costs.  Therefore the 1^st opposite party is entitled only 1,40,607/- from the admitted advance amount of Rs.6,71,667/-. Hence the 1^st opposite party has repay  a sum of Rs.5,37,060/- to the complainant along with interest at the rate of 12% per annum from the date of payment dated i.e. on 03.12.2011 to till the date of this order.

            18. As such the 2^nd opposite party is liable to pay a sum of Rs.2,30,000/- along with interest at the rate of 12% per annum from 26.11.2010 to till the date of this order and also both parties liable to pay compensation a sum of Rs.2,00,000/- for mental agony caused to the complainant apart from this cost of Rs.20,000/- towards litigation expenses. Accordingly point Nos.2&3 are answered.

            In the result this complaint is allowed in part.  The 1^st opposite party is directed to pay a sum of Rs.5,37,060/- (Rupees five lakhs thirty seven thousand and sixty only) along with interest at the rate of 12% per annum from 03.02.2011 to till the date of this order and to pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for mental agony caused to the complainant along with cost of Rs.10,000/-(Rupees ten thousand only)

            The 2^nd opposite party is directed to pay a sum of Rs.2,30,000/- (Rupees two lakhs thirty thousand only) along with interest at the rate of 12% per annum from 26.11.2010 to till the date of this order and to pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for mental agony caused to the complainant along with cost of Rs.10,000/- (Rupees ten thousand only)

            Both the opposite parties shall pay their above respective accrued amounts within three months from the date of this order, failing which the complainant is entitled to recover the same at the rate of 9% per annum from the date of this order to till the date of realization.

Dictated to steno-typist, transcribed and typed by him, corrected and pronounced by us in the open commission, on this the 15^th day of December 2021.

 

VINODH KUMAR                                                                R.V.R.DEENADAYALAN

         MEMBER                                                                                 PRESIDENT

 

List of documents filed by the complainant:-

 

Ex.A1	11.10.2010	Sale cum construction agreement.	Xerox
Ex.A2	26.11.2010	Cash receipt issued by the 2nd opposite party.	Xerox
Ex.A3	15.04.2011	Demand letter by 1st op	Xerox
Ex.A4	26.04.2011	Legal notice sent by complainant.	Xerox
Ex.A5	28.04.2011	Ack.card.	Xerox
Ex.A6	16.05.2011	Rejoinder notice sent by complainant.	Xerox
Ex.A7	…………..	Ack. Card.	Xerox
Ex.A8	06.08.2011	Demand letter by 1st op	Xerox
Ex.A9	06.09.2011	Reply notice sent by complainant.	Xerox
Ex.A10	……………	Ack. Card and returned cover.	Xerox
Ex.A11	15.10.2011	Reply notice sent by complainant.	Xerox
Ex.A12	…………….	Ack.card  of 1st op	Xerox
Ex.A13	04.12.2012	Demand letter by 1st op	Xerox
Ex.A14	16.01.2013	Reply notice sent by complainant.	Xerox
Ex.A15	……………..	Ack. Card.	Xerox

           

List of documents filed by the 4^th opposite party:-

Ex.B1	10.08.2010	Application for advance booking of apartment.	Xerox
Ex.B2	11.10.2010	Agreement for sale and construction entered into between complainant and 1st op	Xerox
Ex.B3	30.08.2010	Receipt issued by 1st op	Xerox
Ex.B4	26.11.2010	Receipt issued by 1st op	Xerox
Ex.B5	29.11.2010	Receipt issued by 1st op	Xerox
Ex.B6	04.02.2011	Receipt issued by 1st op	Xerox
Ex.B7	13.12.2010	Demand letter cum service invoice sent by 1st op to the complainant.	Xerox
Ex.B8	06.08.2011	1st reminder letter sent by 1st op to the complainant.	Xerox
Ex.B9	21.01.2011	Demand letter sent by 1st op to the complainant.	Xerox
Ex.B10	25.02.2011	Demand letter sent by 1st op to the complainant.	Xerox
Ex.B11	15.03.2011	Demand letter sent by 1st op to the complainant.	Xerox
Ex.B12	21.09.2012	Demand letter sent by 1st op to the complainant.	Xerox
Ex.B13	28.11.2013	Final reminder letter sent by 1st op to the complainant.	Xerox
Ex.B14	29.11.2013	Board resolution issued in favour of Mr.C. Saravanan.	Xerox

 

 

 

 

 

 

VINODH KUMAR                                                                R.V.R.DEENADAYALAN

         MEMBER                                                                                 PRESIDENT