Tamil Nadu

South Chennai

CC/265/2015

Shri .A.S.Ramachandran - Complainant(s)

Versus

The Managing Director, M/s.Royal Splendour Developers (P) Ltd. - Opp.Party(s)

M/s.K.Subramanian

16 Aug 2022

ORDER

 Date of Complaint Filed : 24.06.2015                                                                     

 Date of Reservation      : 13.07.2022

Date of Order              : 16.08.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:   TMT. B JIJAA, M.L.,                                         : PRESIDENT

                      THIRU. T.R. SIVAKUMHAR, B.A., B.L.,        :  MEMBER  I 

                      THIRU. S. NANDAGOPALAN., B.Sc., MBA., : MEMBER II

 

CONSUMER COMPLAINT No.265/2015

TUESDAY, THE 16^th DAY OF AUGUST 2022

Shri A.S. Ramachandran,

Plot No.4 D-2, New Crest Magnaa,

Periapanicherry Road,

Gerugambakkam, Porur,

Chennai – 600 122.                                                        …Complainant

 

-Vs-

The Managing Director,

M/s. Royal Splendour Developers (P) Ltd,

No.28, Lawyer Jagannathan Street,

AMG Towers, 3^rd Floor, GST Road,

Guindy, Chennai – 600 032.                                          …Opposite Party

******

Counsel for the Complainant          : M/s.K.Subramanian

Counsel for the Opposite Party       : M/s. P. Gengadaran

 

        On perusal of records and after having heard the oral arguments of the Counsel for Complainant, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.       The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to pay the accumulated interest amount of Rs.3,65,000/- together with interest for the remaining period @ 24% p.a till the date of payment as also costs, charges and expenses of and incidental to the aforesaid amount due and to pay compensation of Rs.5,00,000/- for the loss and injury suffered due to deficiency of service of the Opposite Party resulting in payment of an excess cost for purchase of an alternate flat and to pay litigation costs amounting to Rs.30,000/-.

2.     The facts of the complaint in brief are as follows:-

The Opposite Party made attractive advertisements stating that they are promoting a housing project called 'Advaya" at Kovur, a gated community with all infrastructure facilities and the dwelling flats will be available for occupation by 2014. Believing the false promises of the developer /builder M/s Royal Splendour Developers (P) Ltd, the Complainant on 09.06.2012 remitted a sum of Rs.50,000/- as booking advance to utilize their services for getting a residential apartment/flat at their Kovur project known as "Advaya" for his personal use. The Opposite Party had on 11.06.2012 made a provisional allotment of an apartment measuring a super built up area of 1399 sq.ft and flat bearing no. B-101, first floor, in the project Advaya" at a basic cost of the apartment work outs to Rs.3500/- per sq.ft.  He had remitted on 31.08.2012 another Installment of Rs.9,50,000/- being 20% of the cost of the flat.  The Opposite Party expressed his intention, to sell away the schedule property and that the sale consideration is agreed upon payable in stages and in the event of delay in payment of the money as per terms of agreement and if there is an overdue shall attract a delayed payment interest calculated at 24% and also in the event the overdue amount is not realized within 15 days from the date of demand a right to alter the apartment price to the prevailing price and in the event of the overdue is not realized within 30 days from the date of demand to cancel the allotment and the amount remitted so far will be repaid after deducting the interest charges and an administrative charge of Rs.50,000/- for loss of business opportunity. The Opposite Party had promised to construct and hand over the Flat within 18 months from the date of booking a period not later than 2014. The Opposite Party had not obtained necessary approval from CMDA and had on 13.05.2013 convened a meeting of the prospective buyers and briefed about the delay in getting CMDA approval. The Opposite Party convened a meeting on 13.05.2013, wherein the Opposite Party informed that there was a delay in getting CMDA approval and the agreement holders who could not wait for takeoff of the project can claim refund of the amount deposited with interest. The Opposite Party was not taking any steps to get approval from CMDA to commence and complete the construction, the Complainant has to approach yet another builder/developer to allot him a flat on outright purchase at a price higher than the price offered by the Opposite Party. The escalation in the cost of the flat is only due to the negligence of the Opposite Party in not getting CMDA approval and promoting sale of a flat with an intention to cheat the Complainant. The deficiency in not getting the necessary approval and collecting 20% advance payment of the flat is nothing but an act of cheating resulting in lots of mental agony and stress to the Complainant. Since the Opposite Party had not made any efforts to construction, opted to with draw the amount of Rs.10,00,000/- already remitted together with interest due thereon. The Opposite Party had repaid the said amount of Rs. 10,00,000/- in installments over a period of five months after getting back all the original agreements, receipts for cash paid and committed default in payment of interest due and payable as agreed upon. The Complainant caused a legal notice on 07.04.2015 to the Opposite Party received the notice and had not replied the same. Hence the complaint.

3.  Written Version filed by the Opposite Party in brief is as follows:-

The Complainant entered into an Agreement for Sale dated 12.09.2012 with M/s. Royal Antique Developers Pvt. Ltd., the land owners for purchasing 52 Square Feet of undivided share of project land admeasuring a total extent of 11 Cents and 970 Square Feet of land comprised in Survey Nos.26/1BIB, 26/2A 23/1, 23/2A and 23/2B, Kovur Village. The Complainant entered into a Construction Agreement dated 12.09.2012 with the Opposite Party for construction of a residential Flat bearing Flat No.B101, in the First Floor of Block 'B' in the proposed new building complex 'Advaya’. As per these agreements, the basic cost price of the Flat allotted to the Complainant inclusive of cost of corresponding undivided share of land was Rs.50,71,500/- and in addition, legal and registration charges, Service Tax, Infrastructure fee, maintenance advance, corpus fund, club house charges, TNEB & STP charges were agreed to be paid by the Complainant. The Agreement for Sale and Construction Agreement entered into by the Complainant read clearly that these agreements are interdependent and are not independently enforceable. As per agreed clause of the said Construction Agreement, the time for completion of construction was 24 months (with a further grace period of 3 more months) from the date of obtaining the building plan sanction. The Complainant had expressly agreed under the clause 'Time for Completion of Construction in the said Construction Agreement that delay in obtaining the sanctions of the various Authorities for construction shall not be construed as delay in construction or completion thereof.  The application seeking sanction of Planning Permission was submitted as early as on 28.12.2011 vide PPA received in SBC No.302/2011 dated 28.12.2011 by CMDA followed by numerous personal visits and by letters dated 03.07.2012 and 11.09.2012 of the Opposite Party. As approvals were getting delayed, the Opposite Party earnestly convened a meeting of all its customers of the project, ‘Advaya’ on 13.05.2013 by 7 p.m., at Hotel Raj Palace Sunder and several vital topics were openly discussed with the customers and after considered deliberations, the summary of conclusions arrived upon consensus of all customers were duly recorded in the minutes of the said meeting which was circulated by the Opposite Party to all its "Advaya' customers vide e-mail dated 17.05.2013 at 6.09 p.m., wherein the delay in getting plan approval from CMDA inspite of all the efforts taken by the Opposite Party were well brought out and the alternate options in the design of development by converting the project to a stilt + 2 format in which case it would be sufficient to take local body approval were clearly spelt out.

In exercise of his option to cancel the allotment of Flat in this project in terms of such conclusions recorded in the minutes of the said customer meeting dated 13.05.2013, the Complainant decided to cancel the allotment and to get refund of the aggregate amount of Rs.10,00,000/- paid by him. Thereupon, in consideration of termination of the Agreement for Sale and Construction Agreement upon consent of the Complainant, the Opposite Party effected payments of (i) a principal sum of Rs.4,00,000/- vide Cheque No.000669 dated 28.01.2014 and the Opposite Party sent a letter dated 17.05.2014, enclosing therewith yet another Cheque bearing No.100280 dated 15.05.2014 for the entire balance principal sum of Rs.2,00,000/- due and payable to the Complainant and it was clearly expressed by the Opposite Party in the said letter dated 17.05.2014 that the sum of Rs 2,00,000/- was paid therewith towards full and final settlement in respect of Flat B101 in this project and that by accepting the payment, Complainant was thereby relieved from all rights and liabilities pertaining to the said Flat. Though the Opposite Party with relentless efforts could ultimately obtain due approvals of Planning Permit bearing No.B/SPL BLDG/495ATOD/2013 dated 30.12.2013 for construction of 85 dwelling units at the project site and also could also consequently secure Building Plan approval from Kovur Panchayat President vide BA No.71/2013-2014 dated 12.03.2014, by incurring substantial costs and expenses, the Opposite Party has duly refunded the entire principal amount received from the Complainant as insisted by him, without making any deductions therefrom towards loss of business opportunity caused by the cancellation of allotment midway through, by the Complainant. Hence prayed to dismiss the complaint.

4.     The Complainant, in order to prove his case had filed his Proof Affidavit documents Ex-A.1 to Ex-A.8 were marked on the side of the Complainant. Written Arguments filed on behalf of the Complainant. The Opposite Party had filed Written Version. Though the Opposite Party has not filed Proof Affidavit, this Commission has proceeded to dispose of the case of merits with available documents.

5.     Points for Consideration:-

1. Whether there is any deficiency in service on the part of the Opposite Parties?

2. Whether the Complainant is entitled for the reliefs sought for?

3.To what other relief the Complainant is entitled to?

Point No.1:

The case of the Complainant is that based on the advertisement of the Opposite Party that they are promoting a housing project “Advaya” at Kovur, a gated community with all infrastructures and dwelling flats  which would be available for occupation by the year 2014 and on promises made by the Opposite Party, he had paid a sum of Rs.50,000/- as advance for purchase of a residential flat at their project “Advaya”. On 11.06.2012, the Opposite Party has made provisional allotment of a flat bearing No.110, First Floor, in the project “Advaya” measuring a super built up area of 1399 sq.ft. On 31.08.2012 the Complainant had paid a sum of Rs.9,50,000/- being 20% of the cost of the flat. The sale consideration is agreed to be paid in stages and in the event of delay in payments of money delayed payment interest would be calculated at 24% by the Opposite Party. The Opposite Party had promised to hand over the constructed flat within 18 months from the date of booking and not later than 2014. As the Opposite Party delayed in getting CMDA approval, and as he waited for more than 18 months the Complainant opted to withdraw the amount of Rs.10,00,000/- which the Opposite Party repaid in instalments and committed default in payment of interest.

The Opposite Party has averred that the Complainant had entered into an Agreement for Sale dated 12.09.2012 with M/s Royal Antique Developers Ltd., the land owners for purchasing 526 Sq.ft of undivided share of project land admeasuring 118 Cents and 970 Sq.ft in Survey no.26/1B1B, 26/2A2, 23/1, 23/2A and 23/2B. Simultaneously the Complainant entered into Construction Agreement dated 12.09.2012 with the Opposite Party for construction of a residential flat bearing Flat No B101 in the First Floor of Block ‘B’ in the proposed new building complex ‘Advaya’. As per the Agreements, the basic cost price of the Flat along with the Undivided Share of land was Rs.50,71,500/- in addition to other charges. As per the Agreement, time for completion of construction was 24 months with a further grace period of 3 more months from the date of obtaining the building plan sanction. The application seeking sanction of Planning Permission was submitted as early as 28.12.2011 vide PPA received in SBC No.302/11 dated 28.12.2011 by CMDA. As approval was getting delayed, the Opposite Party convened a meeting of all its customers of the Project ‘Advaya’ on 13.05.2013, wherein option to cancel booking was also decided and agreed to refund the amounts till then received with interest at 10% from the date of receipt of payment. In exercise of the option the Complainant decided to cancel the allotment and get the refund of Rs.10,00,000/-. Thereupon the Opposite Party effected payments of Rs.4,00,000/- vide Cheque No.000669 dated 28.01.2014, Rs.4,00,000/- vide Cheque No.328389 dated 04.03.2014 and Rs.2,00,000/- vide Cheque bearing No.100280 dated 15.05.2014 and it was clearly expressed by the Opposite Party by its letter dated 17.05.2014 full and final settlement was made and thereby the Complainant was relieved from all rights and liabilities pertaining to the said flat. If still entitled to any further claim, can at best seek interest only at the rate of 10% per annum till the date of payments already realized by him.

It is not in dispute that the Complainant had paid a sum of Rs.10,00,000/- towards part payment of the purchase of an apartment measuring super built up area 1399 Sq.ft bearing Flat No.B 101, First Floor in the upcoming project known as “Advaya.” As the construction got delayed, the Complainant had opted for cancellation of flats and had received Rs.10,00,000/- from the Opposite Party. Now the dispute is that the Opposite Party has failed to pay the interest on Rs.10,00,000/- and that he is entitled for the interest at the rate of 24% per annum.

The Complainant had not filed any Agreement of Sale nor the Construction Agreement entered between himself and the Opposite Party. Though the Opposite Party has averred that the Complainant had entered into an Agreement for Sale dated 12.09.2012 with M/s Royal Antique Developers Ltd., the land owners for purchasing 526 Sq.ft of undivided share of project land and simultaneously the Complainant entered into Construction Agreement dated 12.09.2012 with the Opposite Party for construction of a residential flat bearing Flat No B101 in the First Floor of Block ‘B’ in the proposed new building complex ‘Advaya’ at the cost of Rs.50,71,500/- in addition to other charges, even the Opposite Parties had  not produced those documents. The Complainant is claiming interest relying upon the letter dated 01.08.2012 issued by the Opposite Party requesting the Complainant to pay the schedule payment, which overdue would attract delayed payment interest at 24% per annum.

Considering the facts and circumstances of the case, the Opposite Party had themselves admitted that there was delay in getting approvals of Planning Permit and the building Plan Approval and the same was obtained after their earnest efforts. Consequently there was delay in commencement of construction, which made the Complainant to cancel the booking and opted to with draw the amount of Rs.10,00,000/-. The act of the Opposite Party by giving false assurances had induced the Complainant to pay of Rs.10,00,000/- and failed to provide services assured to the Complainant, which  amounts to deficiency in service on the part of the Opposite Party and thereby caused monetary loss and mental agony to the Complainant. Hence this Commission is of the considered view that the Opposite Party has committed deficiency in service. Accordingly Point No.1 is answered in favour of the Complainant

Point No.2 and 3:

The Opposite Party  had refunded the entire principal amount without any deduction towards the cancellation of allotment by the Complainant. Though the Complainant received the entire sum of Rs.10,00,000/- from the Opposite Party which was the part payment made by the Complainant towards purchase of proposed Flat to be constructed by the Opposite Party, is claiming interest at the rate of 24% per annum on Rs.10,00,000/-. In the absence of any Agreement between the Complainant and the Opposite Party on payment of interest and the Opposite Party having agreed to pay interest at the rate of 10% on Rs.10,00,000/- from the respective dates of payment till the receipt of principal sum already realized by the Complainant, this Commission is of the view that Opposite Party is liable to pay interest at the rate of 12% on Rs.10,00,000/- from the respective dates of payment till the receipt of principal sum already realized by the Complainant, and to pay a sum of Rs.5,000/- towards the deficiency of service and mental agony caused to the Complainant and also to pay a sum of Rs.3000/- towards cost of the complaint. Accordingly, Point No.2 is answered in favour of the Complainant. As Point Nos 1 and 2 are answered in favour of the Complainant, the Complainant is not entitled for any other reliefs.

In the result the complaint is allowed in part. The Opposite Party is directed to pay interest at the rate of 12% on Rs.10,00,000/-(Rupees Ten Lakhs Only) from the respective dates of payment till the receipt of principal sum already realized by the Complainant, and to pay a sum of Rs.5,000/- (Rupees Five Thousand Only) towards the deficiency of service and mental agony caused to the Complainant and also to pay a sum of Rs.3000/- (Rupees Three Thousand Only) towards cost of the complaint, within 8 weeks from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 6% p.a from the date of this order till the date of payment.

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 16^th day of August 2022.

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                     B.JIJAA

         MEMBER II                       MEMBER I                           PRESIDENT

 

List of documents filed on the side of the Complainant:

 

Ex.A1	11.06.2012	Copy of provisional allotment of apartment in the name of shri A.S.Ramachandran
Ex.A2	27.08.2012	Copy of letter acknowledging Rs.50,000/-
Ex.A3	01.08.2012	Copy of payment Xerox copy
Ex.A4	31.08.2012	Copy of Xerox of Draft for Rs.950,000/-
Ex.A5	13.05.2013	Copy of minutes
Ex.A6	07.11.2014	Copy of e-mail correspondences
Ex.A7	06.04.2015	Copy of legal notice issued to the Opposite Party
Ex.A8	13.04.2015	Copy of Proof of delivery by India Postal tracking acknowledgement

 

List of documents filed on the side of the Opposite Parties:-

 

NIL

S. NANDAGOPALAN               T.R. SIVAKUMHAR                     B.JIJAA

         MEMBER II                       MEMBER I                           PRESIDENT