Tamil Nadu

North Chennai

232/2014

Mr.Rajkamal singh.R. - Complainant(s)

Versus

Tata Vlue Homes Ltd., Rep by its M.D., - Opp.Party(s)

N.Jayakumar

15 May 2018

ORDER

 

                                                            Complaint presented on:  02.12.2014

                                                                Order pronounced on:  15.05.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

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

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

TUESDAY THE 15^th DAY OF MAY 2018

 

C.C.NO.232/2014

 

 

Mr. RajKamal Singh R,

Plot No. 15, Door No.2/462,

2^nd Main Road, Bhavani Nagar,

Pozhichalur,

Chennai – 600 074

                                                                                    ….. Complainant

 

..Vs..

1. Tata Value Homes Limited,

Represented by its Managing Director,

Times Tower,

12.  

Senapathy Bapat Marg,

Lower Parel (W),

Mumbai – 400 013

 

2. Tata Value Homes Limited,

Represented by its Managing Director,

C/o. e-Nxt Financials Limited,

4.  

I-Think Techno Campus,

Off Pokhran Road No. 2,

Adjacent to TCS Yantra Park,

Thane West – 400 607.

3. Tata Value Homes Limited,

Represented by its Managing Director,

No.30/1, 4^th floor, Paras Plaza,

Cathedral Garden Road,

•  

Chennai – 600 034

 

4. Mr.Jagdish Kannappan,

Tata Value Homes Limited,

No.30/1, 4^th floor, Paras Plaza,

Cathedral Garden Road,

•  

Chennai- 600 034

.....Opposite Parties

Date of complaint                                             : 12.12.2014

Counsel for Complainant                                  : M/s. N.Jayakumar

Counsel for 1 to 3 Opposite Parties                     : Mrs. V.S. Manjula

 

Counsel for 4^th opposite party                             : Mr. T.Kabilan

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to direct the opposite parties to refund the sum of Rs.10,55,282/- with interest 12% per annum from the date of complaint till the date of realization and also to pay compensation for mental agony with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

 

 

1.THE COMPLAINT IN BRIEF:

          The opposite parties are the promoters and made advertisement that they are establishing project in the name of “Santorini – Spanish Styled Homes” at Poonamallee, Chennai. After seeing the advertisement the complainant booked 2BHK residential unit. To book the unit, the complainant made online payment of Rs.30,000/-. In addition to the above payment the complainant has been required to submit an application form and make further payments. The application form is in standard clauses and he was not permitted to make any correction and was compelled to sign the application. The complainant has made a total payment of Rs.8,94,307/-.

          2. The opposite parties, as a developer have sent agreement for sale, construction agreement and power of attorney to be executed by the complainant in favour of the opposite parties. The terms and conditions found in those agreements and power are one sided and prejudicial to the complainant. The complainant sought certain correction in terms and condition and sent a detailed mail about the unfair clauses in the agreement. The power of attorney is worded to authorize the opposite parties to mortgage the property to be purchased by the complainant.

          3. The complainant wanted to purchase the flat by availing loan and he has to pay the installments  for the next 20 years. So the complainant should have absolute right and interest in the property to be purchased by him. Finally the complainant disagreed to sign the documents as they are one sided. Hence he sent a final mail asking to refund a sum of Rs.10,55,282/- Then, he issued legal notice dated 02.09.2014 and a reply dated 16.09.2014 sent by the opposite parties and further insisting the complainant to sign a document. Then the complainant issued a re-joinder notice on 19.10.2014. The complainant filed this complaint to direct the opposite parties to refund the sum of Rs.10,55,282/- with interest 12% per annum from the date of complaint till the date of realization and also to pay compensation for mental agony with cost of the complaint.

4. WRITTEN VERSION OF THE  OPPOSITE PARTIES 1 TO 3 IN BRIEF:

          The opposite parties 1 to 3 are one and the same and the opposite parties consistently replied all the queries raised by the complainant. They have also suitably replied to the legal notice sent by the complainant. The terms and conditions of the application form, agreement for sale and construction agreement are strictly in conformity with the general principles of law and contract. They deny that the complainant was compelled to sign the application form . The customers are given sufficient time to go through and thereafter only they are signing the application.

          5. The opposite parties have all the times maintained that the clauses in various documents are standardized and they have been formulated after giving proper consideration. The allegation of the complainant regarding power of attorney is baseless. The purpose for which the power of attorney is to be executed is solely for execution and registration of cancellation deed in the event of cancellation of allotment of the flat. None of the terms and condition of the documents is against the complainant and is all prepared only in accordance with law. Hence the opposite parties have not committed any deficiency in service and pray to dismiss the complaint with costs.

6. WRITTEN VERSION OF THE 4^th   OPPOSITE PARTY IN BRIEF:

          The complainant has wrongly impleded this opposite party on the assumption that he is directly involved with each and every transactions of the opposite party company. This opposite party is the Deputy General Manager, Marketing and Sales in the other opposite Parties Company.  This opposite party is not concerned with any contractual obligation with the complainant. The complainant has not filed any document that this opposite party directly connected with the present complaint. Hence this opposite party is not liable for the claim made in the complaint and he has not committed any deficiency and the complaint against him is liable to be dismissed.

7. POINTS FOR CONSIDERATION:

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

          2. Whether the complainant is entitled to any relief? If so to what extent?

8. POINT NO :1 

          The  admitted facts are that the opposite parties are the promoters and made advertisement that they are establishing project in the name of “Santorini – Spanish Styled Homes” at Poonamallee, Chennai and  the complainant booked 2BHK residential unit in the said project  and  made online payment of Rs.30,000/- and the opposite parties issued Ex.A3 receipts for said payment and also made payment of Rs.8,61,238/- as in  Ex.A11 at page 56 Statement of Account issued by the opposite parties and thereafter the opposite parties informed the complainant by mail dated 10.05.2014 (Ex.A11at page 57 ) that title documents pertaining the project submitted to the SBI and awaiting for the project approval from the bank.

          9. The complainant would contend that the opposite parties as a developer had sent agreement of sale, construction agreement and power of attorney to be executed by the complainant in favour of the opposite parties and the terms and conditions found in those agreements  and power of attorney are one sided and prejudicial to the complainant interest  and hence  the complainant sought certain correction in terms and condition and sent a detailed mail about the unfair clauses in the agreement and the power of attorney is  worded to authorize the opposite parties to mortgage the property of the  flat to be purchased by the complainant is an unfair trade practice and  they have obtained forcibly his signature in the application form and therefore, the complainant does not want to proceed with the  contract and hence issued Ex.A12 legal notice to refund the amount paid by him and the opposite parties issued Ex.A13 & Ex.A14 reply  and the complainant further issued Ex.A15 re-joinder to their reply notice and since the opposite parties failed to refund the amount the complainant filed this complaint for the deficiency committed by the opposite parties.

          10. The opposite parties would contend that the terms and condition of the application form, agreement for sale and construction agreement are strictly in conformity with the general principles of law and contract and it is the complainant now wants to leave the contract and this kind of the cases only a civil suit will lie because he himself withdraw from the contract and this opposite party are willing to return the amount as per clause 5(b) in Ex.A2 and at no point of time the opposite parties obtained  the complainant signature forcibly in the application form and therefore they have not committed any deficiency in service and prays to  dismiss the complaint with costs.

          11. Admittedly the complainant booked 2BHK  flat in the opposite parties project “Santorini – Spanish Styled Homes” at Poonamallee, Chennai and made online payment of Rs.30,000/- as per Ex.A1  and subsequently he made payment of Rs.8,61,238/- in Ex.A11 at page 56.  The complainant refused to sign the agreement of  sale, construction agreement and power of attorney as the contents of documents are one sided which is prejudicial to the interest of the complainant and on the other hand, it was only in favour of the opposite parties. The said documents are marked as Ex.A17 to Ex.A19 respectively. The complainant also has not signed in those documents made clear on perusal of the same.

          12. In Ex.A17 agreement for sale at page 100 clause 10 deals about mortgage. In the said clause 10 (a) (i) the opposite parties/developer reserves their right that in future, if necessary they can mortgag the property which is to be purchased by the purchaser (complainant). The complainant wanted to purchase the flat by availing loan. If the opposite parties get the right from the complainant to mortgage his property, he will not have full title in his name. Further the opposite parties as a seller will have no right to mortgage the complainant property. Certainly this clause is prejudice the right of the complainant and also establishes the unfair trade practice of the opposite parties and hence the complainant refused to sign the agreement for sale is acceptable.  

          13. Likewise, in Ex.A19 power of attorney at page 159 clause:1 is also against the interest of the purchaser. If the opposite parties wants the complainant to execute above said documents, they can even mortgage  his flat without the knowledge of the complainant and that is why the complainant refused to sign those documents and wanted refund of the amount paid by the complainant. The complainant booked the flat by paying a sum of Rs.30,000/- and subsequently he paid  part payment of Rs.8,61,238/- towards purchase of the flat. The complainant not only booked the flat and also paid part amount of the sale consideration before entering the agreement.

14. The opposite parties relied on an order of the National Commission in RP No.1973 (2014) dated 07.01.2015 DLF SOSUTHERN TOWNS PVT.LTD VS. DIPU C.SEMINLAL) that they have not committed any deficiency. In that case the complainant has not paid any subsequent installments and committed default in making payment of installments and also committed default in returning back duly signed agreement and hence opposite party had every right to forfeit amount of earnest money. In the case in hand even after booking the flat the complainant paid part sale consideration and therefore the above referred order of the National commission is not applicable to the facts of the case in    hand.

15. The opposite parties argued that to get refund of the amount, the complainant has to approach only civil court and not in this Forum and therefore the complaint is liable to be dismissed. Section 3 of the CP Act provides additional remedy to the Consumers without derogation to the other laws in force.  The opposite parties agreed to provide service to the complainant by allotting flat to him after receiving booking amount. Hence the complainant is a Consumer and the complaint is maintainable in this Forum. Therefore, considering the facts and circumstances of the case the opposite parties refused to refund the amount paid by the complainant is deficiency on the part of the opposite parties and therefore, we hold that the opposite parties 1 to 4 have committed deficiency in service.

16. POINT NO:2

          The complainant sought refund of amount of Rs.10,55,282/- in the complaint. However, there is no pleading or proof filed  in the complaint that on what are all the dates he paid the said amount. However, from the available documents we could able to see the proof that the complainant paid a sum of Rs.30,000/- in Ex.A3 and  a sum of Rs.8,61,238/- in Ex.A11 at page 56 and thus totally he paid a sum of Rs.8,91,238/- to the opposite parties  and for the said amount the complainant  is entitled to get refund from them along with 9% interest  from the date of  filing of the complaint (02.12.2014) to till the date of this order. Due to refusal to refund the amount the complainant suffered with mental agony is accepted and for the same it would be appropriate to order to pay a sum of Rs.50,000/- towards compensation, besides a sum of Rs.5,000/- towards litigation expenses.

          In the result the Complaint is partly allowed. The Opposite Parties 1 to 4  jointly or severally are ordered to refund a sum of Rs.8,91,238/- (Rupees eight lakhs ninety one thousand two hundred and thirty eight  only) with 9% interest  from the date of  filing of the complaint (02.12.2014) to till the date of this order  to the Complainant and also to pay  a sum of Rs. 50,000/- (Rupees fifty  thousand only) towards compensation for mental agony, besides a sum of Rs. 5,000/- (Rupees five thousand only)  towards litigation expenses.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said refund and compensation amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 15^th day of May 2018.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 09.03.2014		Mail communication between partners
Ex.A2 dated March 2014		Application Form
Ex.A3 dated 10.03.2014		Receipt for payment
Ex.A4 dated 18.03.2014		Allotment letter
Ex.A5 dated 24.03.2014		Receipt for payment
Ex.A6 dated 26.03.2014		Letter from opposite parties
Ex.A7 dated 08.04.2014		Receipt for payment
Ex.A8 dated 08.04.2014		Mail communication between partners
Ex.A9 dated 21.04.2014		Letter from opposite parties
Ex.A10 dated 28.04.2014		Letter from opposite parties
Ex.A11 April and May 2014		Mail communication between partners
Ex.A12 dated 02.09.2014		Legal notice issued by the complainant
Ex.A13 dated 09.09.2014		Interim reply notice
Ex.A14 dated 16.09.2014		Reply given by the opposite parties
Ex.A15 dated 19.10.2014		Rejoined notice issued by the complainant with acknowledgement card
Ex.A16 dated 24.10.2014		Invoice with letter
Ex.A17 dated NIL		Agreement for sale
Ex.A18 dated NIL		Construction agreement
Ex.A19 dated NIL		Power of attorney

 

LIST OF DOCUMENTS FILED BY THE 4^th OPPOSITE PARTY :

 

Ex.B1 dated 15.05.2015                        Resignation letter OP No.4

 

Ex.B2 dated 20.08.2015                        Relieving Letter of OP No.4

LIST OF DOCUMENTS FILED BY THE 1 TO 3 OPPOSITE PARTIES:

 

Ex.B3 dated 16.09.2014                        Reply

 

Ex.B4 dated 01.12.2014                 Sur – rejoinder

 

Ex.B5 dated 18.03.2014                        Application Form    

 

 

 

MEMBER – I                                                               PRESIDENT