Tamil Nadu

StateCommission

CC/97/2012

N. GANESAN - Complainant(s)

Versus

SRI SRINIVASA ESTATE - Opp.Party(s)

S.L. SUNDAR SANAN

08 Feb 2022

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 600 003.

BEFORE   Hon’ble THIRU. JUSTICE. R. SUBBIAH                       ::     PRESIDENT                       

                  Tmt. Dr. S.M. LATHA MAHESWARI                            ::      MEMBER

 

C.C. No.97/2012

DATED THIS THE 08^TH DAY OF FEBRUARY 2022

N. Ganesan,

S/o. Mr. R. Natesan,

No.305 A, Type-II Quarters,

Block No.6, Neyveli – 607 803,

Cuddalore District.                                                                                  .. Complainant.  

 

-Versus-

M/s. Sri Srinivasa Estate,

Rep. by Mr. R. Jaganathan,

Sole Proprietor,

No.2/340 E, Kamaraj Street,

Padappai – 601 301.                                                                              .. Opposite party.

 

Counsel for the complainant                         : M/s. S.L. Sudarsanam

Counsel for the opposite party                      : M/s. K. Ganesan

 

This complaint having come up for final hearing before us on 25.01.2022  and on hearing the arguments of both parties and upon perusing the material records submitted by the complainant and this Commission made the following:-

ORDER

 Dr. S.M. LATHA MAHESWARI   : MEMBER

1.         The complaint was filed by the complainant alleging deficiency in service on the part of the opposite party along with a prayer to direct the opposite party to pay a sum of Rs.35,00,000/- towards compensation and damages for negligence committed by the opposite party, to register the Flat bearing No.G-1, residential building at Plot No.6, Old No.108, New No.29, Mudichoor, Tambaram Taluk, Kancheepuram District comprised in S. No.7/AB consisting of 827 sq. ft. of undivided share in land along with 951 sq. ft. of built up area in the Ground Floor together with car park as per the Agreement dt.19.05.2010 in the layout known as “Muthamil Nagar”, not to register the Flat bearing No.G-1, residential building at Plot No.6, Old No.108, New No.29, Mudichoor, Tambaram Taluk, Kancheepuram District comprised in S. No.7/1A1B consisting of 827 sq. ft. of undivided share in land along with 951 sq. ft. of built up area in the Ground Floor together with car park to any other person / party and with cost of the proceedings.

2.         Brief facts necessitating the filing of complaint:

            The complainant was allured by the advertisements made by the opposite party for promotion of flats at Plot No.6, Muthamil Nagar, Mudichoor Village.    The complainant booked flat No.G-1 measuring an extent of 951 sq. ft. of built up area along with 827 sq. ft. of undivided share with one car park and the total sale consideration was fixed at Rs.20,00,000/-.  The Agreement for Sale was entered between the parties and an advance amount of Rs.3,00,000/- was paid on 19.05.2010.  Further on 02.09.2010, the complainant paid Rs.2,00,000/- towards sale consideration.  In the mean time, the complainant approached the HDFC Bank for Housing Loan and Rs.8,200/- was paid by the complainant for processing the said loan.   It was informed that the complainant was eligible for Rs.14,86,798/- as Housing Loan by the HDFC Limited.  However, when the HDFC Ltd. approached the opposite party for certain documents and clarifications, the opposite party contrary to the Agreement entered on 19.05.2010 had submitted that the complainant was allotted a flat with built up area of 585 sq. ft. and 337 sq. ft. of undivided share of land.  Consequently, the HDFC Ltd informed the complainant that he was not eligible for the Housing Loan.   When the complainant approached the opposite party several times seeking clarification of the illegal act committed by them there was no proper response and the complainant was made to run from pillar to post. Hence, the complainant was constrained to file the present complaint for the following reliefs as mentioned above.

3.         The opposite party filed version stating that it was only on the request made by the complainant for his Income Tax purpose the Agreement for Sale dt. 19.05.2010 was entered for a larger undivided share enabling him to get enhanced loan amount.  He further submitted that the Agreement was a non-est in the eye of law and hence, the complainant was estoped from forwarding false and baseless allegations based on the Agreement dt.19.05.2010. However, it was admitted by him that the total sale consideration was fixed at Rs.20,00,000/- and that the complainant had paid Rs.5,00,000/- as advance amount.   Thus denying all other allegations alleged by the complainant, the opposite party sought for the dismissal of the complaint stating that he was no way responsible for the cancellation of the loan sanctioned in favour of the complainant and it was only the complainant who had committed breach of trust, extortion, falsification of records and was liable to be penalized under the Indian penal code.

4.         The complainant had filed proof affidavit and submitted documents marked as Ex.A1 to Ex.A10.  The opposite party filed proof affidavit and submitted documents marked as Ex.B1 to Ex.B9.

5.         Points for Consideration:-

1. Whether there is any deficiency in service and unfair trade practice on the part of the opposite party as alleged by the complainant?
2. If so, what relief the complainant is entitled to?

6.         Point No.1:-

The following documents were filed by the complainant in proof of his complaint allegations:

1. The Sale Agreement entered between the complainant and opposite party dt.19.05.2010 along with an endorsement for payment of an advance amount of Rs.3,00,000/- was marked as Ex.A1;
2.  Endorsement made on the backside of the Sale Agreement with regard to the receipt of Rs.2,00,000/- on 02.09.2010 as advance by the opposite party from the complainant was marked as Ex.A2;
3. The sanctioned plan dt.08.10.2010 for 6 flats to be constructed in plot No.6 Survey No.7/1A1, Muthamil Nagar, Mudichur Village, Tambaram Taluk was marked as Ex.A3;
4. The letter intimating the approval of housing loan for Rs.14,86,798/- for a term of 12 years in favour of the complainant dt.05.01.2011 was marked as Ex.A4;
5. The Construction Agreement dt.29.01.2011 sent to the HDFC Bank by the opposite party was marked as Ex.A5;
6. The Sale Agreement dt.29.01.2011 sent to the HDFC Bank by the opposite party was marked as Ex.A6;
7. The letter written by the opposite party to the HDFC Ltd. with regard to the allotment of flat with undivided share of 337.5 sq. ft. and built up area of 827 sq. ft. dt.29.01.2011 was marked as Ex.A7;
8. The letter by the opposite party in favour of HDFC Ltd. with regard to the details of undivided share of land and the built up area of all the 6 flats was marked as Ex.A8;
9. The letter by the opposite party in favour of HDFC Ltd. with regard to the sale of house for a total consideration of Rs.19,00,000/- as per the Agreement dt.29.12.2010 was marked as Ex.A9;
10.  The legal notice sent by the complainant by RPAD with regard to the deviation of the UDS and built up area along with a claim of compensation of Rs.35,00,000/- with a direction to handover possession was marked as Ex.A10.

7.         On the side of the opposite party refuting the allegations of the complainant the following documents were filed along with proof affidavit:-

1. The Agreement of Sale entered between the complainant and opposite party dt.15.12.2010 was marked as Ex.B1;
2. The Sale Deeds executed in favour of other 6 allottees were marked as Ex.A2 to Ex.A7;
3. The  reply notice given by the opposite party to the complainant dt.18.12.2012 was marked as Ex..B8;
4. The  reply notice dt.26.03.2011 given by the opposite party in response to the complainant’s legal notice dt.11.03.2011 was marked as Ex..B9;

8.         Heard both Counsels.   The Learned Counsel for the complainant submitted that on the advertisement made by the opposite party the complainant agreed to purchase a flat  constructed in Plot No.6, Muthamil Nagar, Mudichur Village with an extent of 951 sq. ft. built up area with 827 sq. ft. UDS with one allotted car park, out of the total area of 3376 sq. ft.  It is was submitted by him that  he had the eligibility for getting housing loan around Rs.14,00,000/- from the HDFC Bank and the same was also approved and sanctioned to him vide document Ex.A4.  However, when the bank found the deviation in measurements with regard to built up area and UDS they denied the Housing Loan to the complainant.   Hence he argued that the act of opposite party in giving a varied measurement of built up area and UDS contrary to the actual Sale Agreement to the HDFC Bank was a clear deficiency in service and that the opposite party has intentionally committed breach of contract and had deceived the complainant.  Hence he prayed for the complaint to be allowed as prayed for. 

9.         Disputing the allegations of the Learned Counsel for the complainant, the opposite party’s learned Counsel submitted that the complainant who was working in Government of India wanted for Bank record purpose for the purchase of flat compelled and requested this opposite party to give a varied measurement in the Sale Agreement dt.19.05.2010 and thus he submitted that it was only a nominal agreement created at the instance of complainant for getting higher loan.   He further submitted that the Sale Agreement dt.19.05.2010 relied upon by the complainant was a sham document, the opposite party when requested the complainant to return the same it was admitted by the complainant to return it back to this opposite party however he did failed do so.   Further it is submitted by him that another agreement dt.15.12.2010 was entered between the complainant and the opposite party  which is marked as Ex.B1 subsequent to the earlier document  clearly proves that the complainant is estopped from claiming relief based on the Agreement dt.19.05.2010 as it was rescinded.  It is further argued that they were not responsible for the cancellation of the loan sanctioned in favour of the complainant.  Thus it was interallia submitted that the documents submitted by the opposite party  clearly shows that there is no deficiency in service or unfair trade practice or negligence on their side and sought for dismissal of the complaint. 

10.       Perused the pleadings and documents submitted by both the parties.  It is an admitted fact that the Sale Agreement dt.19.05.2010 was entered between both the parties.  Though the opposite party denies the veracity of the document stating that it is a sham and nominal document the execution of the same is not disputed. As per Ex.A1, Sale Agreement, it is admitted that the complainant was allotted 827 sq. ft. of UDS out of 3376 sq. ft. of total area and a ground floor flat in G1 with 951 sq. ft. built up area.  The total sale consideration agreed between the parties is Rs.20,00,000/- as per the said Agreement.  However we could see that in the documents submitted as Ex.A5 to Ex.A8, the letters sent by the opposite party to the HDFC Bank Ltd. which clearly shows that the UDS allotted to the complainant was 337.5 sq. ft. with a built up area of 827 sq. ft. which is contrary to the terms found in Ex.A1.    The  submissions advanced by the opposite party that Ex.A1 was a sham and nominal document executed only on the request made by the complainant for the purpose of obtaining loan and for tax purpose has not been proved by producing evidence for the same.  The Agreement of Sale dt.15.12.2010, Ex.B1 entered between the parties could  not be relied upon as it is subsequent to the earlier Agreement of Sale and there found no mention about the cancellation of the earlier Agreement dt.19.05.2010.  Hence, we can safely conclude that the said document was created by the opposite party unilaterally only to defraud the complainant.  Further the payment of Rs.5,00,000/- as advance towards the sale consideration for the purchase of the flat was not denied by the opposite party.  It is also an admitted fact that due to the cancellation of the loan in favour of the complainant no further transactions existed between the parties and hence no possession of the flat was given to the complainant as per Agreement entered between the parties.  In such circumstances we are of the view the act of the opposite party  in varying the terms and conditions as agreed in the sale agreement dt. 19.05.2010 (Ex.A1) at its convenience detrimental to the interest of the complainant via. documents Ex.A5 to Ex.A8, the letters given to the  HDFC Bank amounts to clear deficiency in service and unfair trade practice.    Thus we answer the point in favour of the complainant holding that there is clear deficiency in service and unfair trade practice on the side of the opposite party.

11.       Point No.2:-

As we have held that the opposite party has committed clear deficiency in service and unfair trade practice, the complainant needs to be compensated appropriately in the interest of justice.  Thus we order refund of the advance amount of Rs.5,00,000/- paid by the complainant with 9% interest.   Further, for the mental agony and hardship suffered by the complainant he is also entitled to a further sum of Rs.2,00,000/- as compensation.  The prayer in the complaint for a direction to the opposite party to handover the possession could not be granted for the reason that apart from the payment of Rs.5,00,000/- no further payment was made by the complainant and also that the opposite party had sold all the flats to some third parties.  Due to the very same reason the prayer restraining the opposite party from selling the flat allotted to the complainant also could not be entertained.   In the facts and circumstances, we order Rs.10,000/- as cost of the complaint.

            In the result, the complaint is partly allowed as follows :-

1. The opposite party shall refund the amount of Rs.5,00,000/- (Rupees Five Lakhs only) with 9% interest from the date of complaint till realization;
2. Compensation of Rs.2,00,000/- (Rupees Two lakhs only) for the mental agony & hardship;
3. Cost of Rs.10,000/-  (Rupees Ten thousand only) towards litigation expenses.  

 

                Sd/-                                                                                    Sd/-

S.M.LATHA MAHESWARI                                                                R. SUBBIAH            

            MEMBER                                                                                          PRESIDENT

 

 

List of Documents filled by the Complainant:-   

Ex.A1	19.05.2010	Copy of Agreement between the complainant & opposite party with an advance payment  of Rs.3,00,000/-
Ex.A2	02.09.2010	Copy of endorsement made on the backside of the Sale Agreement for advance payment of Rs.2,00,000/-
Ex.A3	08.10.2010	Copy of Sanctioned Plan for six Flats
Ex.A4	05.01.2011	Copy of approval of Housing Loan by HDFC Bank Ltd. by the opposite party
Ex.A5	29.01.2011	Copy of Construction Agreement sent to HDFC Ltd. by the opposite party
Ex.A6	29.01.2011	Copy of Sale Agreement sent to HDFC Ltd. by the opposite party
Ex.A7	29.01.2011	Copy of letter to HDFC Bank Ltd. by the opposite party about the different extent of sq. ft.
Ex.A8	29.01.2011	Copy of letter of HDFC Bank Ltd. by the opposite party
Ex.A9	29.01.2011	Copy of letter of HDFC Bank Ltd. by the opposite party
Ex.A10	11.03.2011	Copy of legal notice sent by the complainant by RPAD

 

List of Documents filled by the opposite party:-   

                                               

Ex.B1	15.12.2010	Copy of Agreement of Sale entered by the complainant with the opposite party
Ex.B2	09.12.2010	Copy of Sale Deed in favour of Parvathi
Ex.B3	03.02.2011	Copy of Sale Deed in favour of Jayprakash
Ex.B4	16.03.2011	Copy of Sale Deed in favour of Padmanabhan
Ex.B5	16.11.2011	Copy of Sale Deed in favour of Singaravelu
Ex.B6	30.12.2011	Copy of Sale Deed in favour of Madhavan
Ex.B7	29.03.2012	Copy of Sale Deed in favour of Priya
Ex.B8	28.12.2012	Copy of reply notice sent by the Counsel for the opposite party to complainant with acknowledgement
Ex.B9	26.03.2011	Copy of reply notice issued by the Counsel for opposite party in response to the complainant’s legal notice dt.11.03.2011

 

 

S.M.LATHA MAHESWARI                                                                         R. SUBBIAH             

          MEMBER                                                                                          PRESIDENT