Tamil Nadu

North Chennai

CC/99/2015

M/s.K.Sudarsan - Complainant(s)

Versus

The Chairman and Managing Director, M/s. VGN Homes Pvt Ltd., - Opp.Party(s)

M/s.Manohar and others

02 Feb 2022

ORDER

                                                                     Complaint presented on : 18.05.2015

                                                                     Date of disposal            : 02.02.2022

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

                PRESENT: THIRU. J. JUSTIN DAVID, M.A., M.L.               : PRESIDENT

                        THIRU. S. BALASUBRAMANIAN, M.A., M.L.          : MEMBER

 

C.C. No.99/2015

 

DATED THIS WEDNESDAY THE 02^nd  DAY OF FEBRUARY 2022

 

                                

K.Sundarsan, S/o.K.Subaiah Naidu,

No.05/25, Jeswant Nagar Phase -1,

Mogappair West, Chennai – 600 037,

 

2.M/s. S.Shalini, D/o.K.Sudarsan,

No.5/25, Jeswant Nagar Phase – 1,

Mogappair West, Chennai – 600 037.

                                                                                               …..Complainants

 ..Vs..

 

The Chairman & Managing Director,

M/s. V.G.N. Homes Pvt. Ltd.,

333, Poonamallee High Road,

Aminijikarai, Chennai – 600 029.

.....Opposite Party

Counsel for Complainants                        :  Mr.K.Kumaran,

                                                                   Mrs.Elveera Ravindran   

 

Counsel for opposite party                       : M/s.G.Peranban

ORDER

 

 

THIRU. J. JUSTIN DAVID, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of a sum of Rs.2,64,000/- towards interest on Rs.6,00,000/- being the advance amount paid by the complaints to the opposite party, at 24% p.a  atleast from the date of last payment on 02.09.2011 till payment on 05.07.2013 and to pay a sum of Rs.10,00,000/- toward compensation for mental agony and with cost of this complaint.

1.THE COMPLAINT IN BRIEF:

          The complainants state that the opposite party is a Flat and Property Promoter. The opposite party showed pamphlets showing the site and plans of VGN imperia, showing  flats comprised in VGN imperia  on a flat in VGN Imperia III flats. The flat chosen by the complainants was identified and named as Flat No.A-2/S1. The opposite party fixed the price of the flat at Rs.3,450/- per sq.ft and the total costs including amenities were fixed at Rs.43,66,561/-. An additional charge of Rs.5,40,511/- towards E.B.WTP, etc., with undivided share of land of an extent of 435 sq.ft and flat with a built up area of 1,109 sq.ft with the specifications as quoted. The complainants have made a total payment of Rs.6,00,000/- and were awaiting to hear from the opposite party for execution of sale deed and builders agreement. In spite of lapse of more than one year as assured by the opposite party, the complainants did not hear anything from the opposite party. The complainants were made to go over to the office of the opposite party at least hundred times.  Finally during the last week of February, 2013, the complainants were told that you have sold the Flat A-2/S1, VGN imperia Phase III, to some other person and that the opposite party cannot make the said Flat available to the complainants and that the complainants were asked to book a flat afresh and that too on the current enhanced rates as was applicable on that date. The complainants having frustrated with the irresponsible behavior and failure of the opposite party to keep up their promise to build and give the Flat opted by the complainants, was forced to cancel their bookings vide first complainant’s letter dated 01.03.2013  on 02.03.2013. The failure of the opposite party, to fulfill their obligation to allot the flat sought for by the complainants is clear dereliction of duty of the opposite party, as a builder and clear deficiency of service as a builder. The opposite party is, therefore, liable not only to refund the advance amount paid by the complainants, at least at the rate of 24% p.a but also liable to compensate the complainants for the mental agony and torture suffered by the complainants, which the complainants modestly estimate at Rs.10,00,000/-. The complainants issue a legal notice through their advocate on 08.05.2013. The complainants sought the opposite party  to refund the advance payment of Rs.6,00,000/- together with interest thereon at 24% p.a from the date of payment of advance to the opposite party till  refund together with a sum of Rs.10,00,000/- towards compensation for the mental agony and torture suffered by my clients due to non availability of flat sought for by them and due to the gross deficiency of the opposite party. The opposite party in spite of receiving the notice did not come forward to refund the advance money and the compensation sought for the complainants. The opposite party on 05.07.2013 refunded Rs.6,00,000/- paid towards advance. But failed to pay the damages and interest and costs. Hence this complaint.     

2.WRITTENVERSION FILED BY THE OPPOSITE PARTY IN BRIEF:

          It is correct to say that the complainants approached to purchase the flat viz. Flat No.A-2/S1  in VGN Imperia Phase III at Mahalakshmi  Nagar, Thiruverkadu. The full and final settlement letter dated 05.07.2013 is ensures the truth. But it is incorrect to say that the flat booked by the complainants was to be erected on the front of the plot and that only after completing the flats in the other blocks at the rear side of the plot and that would take at least a year from the date of booking. The complainants created the story towards to make cause of action for this case. It is incorrect to say that complainants were advised to wait by the opposite party since the project would take at least one year for start of construction. Admittedly the opposite party received the payment from the complainants as stated in the para 4 subjects to the terms and conditions was made at the time of booking the flat stated above. Admittedly the complainants paid a sum of Rs.6,00,000/- towards the said flat and thereafter the complainants did not come forward to proceed further in respect of execution of contract. After the last payment on 02.09.2011, the complainants neither met our representative not visited out office in connection of above said flats sale. It is correct to say that the complainants concocted the story to crab the money from us. The opposite party submits that the complainants approached the form with unclean hands and misleading the facts. The complainants is not interested to purchase the said flat and did not make any further payment after 02.09.2011. The complainants voluntarily come forward to cancel the booking by receiving Rs.6,00,000/- as full and final settlement. The complainants themselves came forward to us and cancelled the booking and therefore no breach on the part of the opposite party and there is no dereliction of duty and there is no deficiency of service on the part of the opposite party. The complainants voluntarily received the advance amount through cheque dated 28.06.2013 bearing cheque No.295861 drawn on Andhra Bank a sum of Rs.6,00,000/- as full and final settlement. But the complainants having received the money with ulterior motice and illegal intention to defraud the opposite party to approached this Hon’ble Commission  so as to defraud the opposite party as much as possible and thereby deceive the opposite party.  

3. POINTS FOR CONSIDERATION:

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

2. Whether the complainants is entitled for interest of Rs.2,64,000/- ?

3. Whether the complainants for compensation and cost?

4. To what other relief, the complainants is entitled?

04. POINT NO. 1 TO 3

          The complainants  booked a flat  No.A-2/S1 at VGN Imperia  for a prize Rs.3,450 per sq.ft  with  undivided share of land of an extent of 435 sq.ft with a built up area 1,109 sq.ft. The total cost of building with amenities were fixed at Rs.43,66,561/- . The complainants paid total sum of Rs.6,00,000/- as on 05.06.2011. Ex.A1 is the invoice issued by the opposite party in the name of complainant’s daughter Shalini. The total cost of building with amenities fixed at Rs.43,66,561/-.  Ex.A2 to Ex.A9 are the payment receipt issued by the opposite party in the name of complainant’s daughter. The opposite party also accepted the receipt of Rs.6,00,000/- from the complainants.

          05. The complainants cancelled the booking by his letter dated 01.03.2013. Ex.A10 is the copy of cancellation letter issued by the complainants in the name of opposite part.  In Ex.A10 the complainants stated that he is not interested in purchasing the other flat that too in new rate and hence he requested the opposite party to refund a sum of Rs.6,00,000/- with interest from the date of booking. One Staff of the opposite party Mr.Haridoss received the  Ex.A10 on 02.03.2013. The opposite party refunded a sum of Rs.6,00,000/- on 05.07.2013. The complainants also accepted the same.

          06. The case of the complainants is that the opposite has not paid the interest from the date of booking till the date of refund and therefore the complainants issued a legal notice to the opposite party on 26.08.2013 and even after receipt of legal notice the complainants failed to pay the interest and therefore the complainants filed this complaint before this commission.  The opposite party contended that the complainants voluntarily received the advance amount through cheque dated 28.06.2013 towards full and final settlement and having received the amount with an ulterior motive the complainants filed this complaint.

          07. The complainants paid total   advance amount of Rs.6,00,000/-  in various dates and last payment was made on 02.09.2011. Thereafter the complainants has not paid any amount till the date of cancellation of the booking. The complainants cancelled the booking on 01.03.2013 and cancellation letter was received by the opposite party 02.03.2013. The opposite party refunded the advance amount of Rs.6,00,000/- on 28.06.2013 by way of cheque and the complainants received the amount on 05.07.2013. The opposite party has not paid any interest to the booking amount of Rs.6,00,000/-. Neither the complainants nor the opposite party filed the terms and condition of booking and refund. Under these circumstances the opposite party is liable to refund the booking amount along with interest from the date of cancellation of the booking till the date of payment. It is the duty of the opposite party being the builder refund the advance amount with interest to the complainants. But the opposite party failed to return the interest and same amounts to deficiency in service. The failure on the part of the opposite party not to return the interest would cause mental agony and financial loss to the complainants. Therefore there is deficiency in service on the part of the opposite party and the complainants is entitled for interest, compensation and cost.

08. POINT NO.4

          The complainants paid a total sum of Rs.6,00,000/- to the opposite party and canceled the booking on 01.03.2013 and same is received  by the opposite party on 02.03.2013. The opposite party refunded Rs.6,00,000/- to the complainants  by cheque dated 28.06.2013 and received by the complainants on 05.07.2013. The complainants is entitled for interest at the rate of 9% per annum  for the amount of Rs.6,00,000/- from 02.03.2013 to 04.07.2013 for a period of 4 months which comes to Rs.18,000/-.

In the result, this complaint is allowed in part. The opposite party ordered to pay a sum of Rs.18,000/-(Rupees eighteen thousand only) towards interest  to the complainants and to pay a sum of Rs.5,000/-(Rupees five thousand only) towards compensation besides a sum of Rs.5,000/-(Rupees five thousand only) towards cost of proceedings.

          The above amount shall be paid to the complainants within 2 months from the date of receipt of the copy of this order, failing which the above said amount shall carry 9% interest from the date of this order to till the date of payment.    

Dictated  by the President to the Assistant taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Commission  on this the 02^nd   day of February 2022.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS MARKED ON THE SIDE OF COMPLAINANTS:

Ex.A1 dated 05.06.2011          Flat allotment and payment schedule order  opposite party to complainants

Ex.A2 dated 05.06.2011          Receipt for Rs.50,000/- opposite party to complainants

Ex.A3 dated 05.06.2011          Receipt for Rs.50,000/- opposite party to complainants

Ex.A4 dated 05.06.2011          Receipt for Rs.50,000/- opposite party to complainants

Ex.A5 dated 04.08.2011          Receipt for Rs.50,000/- opposite party to complainants

Ex.A6 dated 04.08.2011          Receipt for Rs.1,00,000/- opposite party to complainants

Ex.A7 dated 02.09.2011          Receipt for Rs.1,00,000/- opposite party to complainants

Ex.A8 dated 02.09.2011          Receipt for Rs.1,00,000/- opposite party to complainants

Ex.A9 dated 02.09.2011          Receipt for Rs.1,00,000/- opposite party to complainants

Ex.A10dated 01.03.2013         Letter seeking cancellation of booking and seeking refund of advance complainants to opposite party with acknowledgement from opposite party

Ex.A11 dated 08.05.2013        Advocate notice complainants to opposite party

Ex.A12 dated 09.05.2013        Postal receipt postal authorities to complainants

Ex.A13 dated NIL                   Statement showing the sale of the flat A2/S1 opposite party to complainant

Ex.A14 dated 05.07.2013        Letter refunding the advance payment made by the complainants to the opposite party with cheque for Rs.6,00,000/- dated 28.06.2013.

Ex.A15 dated 26.08.2013        Advocate notice demanding damages and interest complainants to opposite party

 

Ex.A16 dated 03.09.2013        Postal acknowledgement card for advocate notice dated 25.08.2013 opposite party complainants.

LIST OF DOOCUMENTS MARKED ON THE SIDE OF OPPOSITE PARTY:

 

                                                            ….. NIL …..  

                                               

 

MEMBER – I                                                               PRESIDENT