Tamil Nadu

North Chennai

CC/89/2015

G.Mathivanan - Complainant(s)

Versus

The Managing Director, M/s.Strwbarry Housing Projects (P) Ltd - Opp.Party(s)

A.Palaniappan

30 Mar 2017

ORDER

          

 

                                                            Complaint presented on:  08.05.2015

                                                                Order pronounced on:  30.03.2017

 

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

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

THURSDAY THE 30^th DAY OF MARCH 2017

 

C.C.NO.89/2015

 

 

 

Mr.G.Mathivanan,

No.320/16, Aristo Apartment,

III Floor, M.T.H.Road,

Villivakkam,

Chennai – 600 049.

                                                                                               ..... Complainant

 

..Vs..

	The Managing Director, M/s. Strawbarry Housing Projects (P)  Limited, F-20, 2nd Main Road, Anna Nagar, Chennai – 600 102.
	.....Opposite Party

Date of complaint                                  09.06.2015

Counsel for Complainant                      : Mr.A.Palaniappan

Counsel for opposite party                       : Ex - parte (Mr.Satish Parasaran)

                                                                 (21.09.2015)

 

 

O R D E R

 

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

          This complaint is filed by the complainant  to refund  the balance amount of Rs.50,000/- and draft commission amount with interest  and also  to pay compensation for deficiency in service and mental agony with cost of  the Complaint  u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IS IN BRIEF:

          The Complainant approached the Opposite Party on 20.09.2013 for purchasing a flat through home loan developed by the Opposite Party in the name SBR Lake View Project.   The Opposite Party directed the Complainant to meet their builders M/s. Identity Constructions Private Limited. The Complainant met the builder of M/s Identity Constructions and the marketing executive of the Opposite Party on 25.09.2013 and they had negotiations in respect of the flat S-2 second floor, SBR Lake View  Project. The Complainant also paid a token advance of Rs.1,00,000/- by cash on 25.09.2013 and the Opposite Party issued receipt for the said amount. Builder asked the Complainant to collect cost details from their marketing executive. The Complainant also informed the marketing executive that before finalizing the total cost for booking. The requirement of the Complainant would be finalized and the Opposite Party also agreed for the same. The Complainant contacted the marketing executive several times personally and through phone and nothing had been finalized. In the mean time the Opposite Party called the Complainant to pay a sum of Rs.7,00,000/- as advance for having negotiations for finalizing the total cost of the flat. As the Complainant already paid a sum of Rs.1,00,000/- hence paid another sum of Rs.7,00,000/- on 07.11.2013 by way of cheque to the Opposite Party and the Opposite Party also issued receipt for the same. After receiving a sum of Rs.8,00,000/- towards advance, the Opposite Party/ builder and the marketing executive had not given  the documents for legal verification as assured earlier. On 22.11.2013 the builder asked the Complainant to submit a cancellation letter for arranging refund of amount and immediately Complainant submitted cancellation letter on the very same day. After return 2^nd cancellation letter on 27.01.2014, the Opposite Party stated that a sum of Rs.50,000/- would be  deducted as cancellation charges. Accordingly a sum of Rs.7,47,750/-  refunded deducting a sum of Rs.50,000/- as cancellation charges of Rs.2,250/- towards demand draft commission. The Complainant sent another letter on 02.04.2014 for the refund of Rs.50,000/-. The sent amount was not refunded. Thereafter the Complainant filed this Complaint for refund of the balance amount of Rs.50,000/- and draft commission amount and also compensation for deficiency in service and mental agony to the Complainant with cost of the Complaint.    

          2. Though the Opposite Party received notice and on his behalf Mr.Satish Parasaran  advocate filed vakalat for him and he did not file written version on his  behalf  on 21.09.2015 and hence the Opposite Party called absent and set Ex-parte  for non filing of written version.

          3. The Complainant filed his proof affidavit and documents. Ex.A1 to Ex.A10 were marked on the side of the Complainant.

          4. The Complainant had also filed written argument and oral arguments of the Complainant was heard.

5. POINTS FOR CONSIDERATION

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

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

 

6. POINT NO :1

          The Opposite Party is developing housing projects with their builder M/s Identity Construction Private Limited. The Complainant approached the Opposite Party to purchase a flat on 20.09.2013 and he inturn directed him to meet his builders. The Complainant also met the builders and marketing executive on 25.09.2013 and paid a sum of Rs.1,00,000/- towards advance under Ex.A1. Subsequently the Complainant discussed with the marketing executive several times and the Opposite Party called the Complainant to pay another sum of Rs.7,00,000/- as advance in order to finalize the cost of the flat by way of negotiations. The Complainant also paid the said sum of Rs.7,00,000/-  by way of cheque on 07.11.2013 and the Opposite Party issued Ex.A2, for receipt of the cheque. After receiving the total amount of Rs.8,00,000/- the Opposite Party and their builder not provided building plan to the Complainant to ascertain whether approved or not and further there was no progress. Further the Complainant wrote Ex.A3, Ex.A4 letters since there was no progress and asked the Opposite Party to refund a sum of Rs.8,00,000/- advance amount and cancel the allotment if any. The Opposite Party also refunded a sum of Rs.7,47,750/- after deducting commission of Rs.2,250/- on 24.03.2014. Therefore including draft  amount the Opposite Party refunded the amount of Rs.7,50,000/- to the Complainant out of the advance amount of Rs.8,00,000/- received by him.

          7. The Complainant sent Ex.A9 letter to the Opposite Party to refund balance advance amount of Rs.50,000/- to him and the said letter was acknowledged by the Opposite Party  under Ex.A10. The Opposite Party while refunding the Rs.7,47,000/- he has deducted a sum of Rs.50,000/- towards cancellation charges as per Ex.A8. Admittedly, there was no agreement entered by the Complainant to purchase a flat either from the Opposite Party or his builders. As there was no agreement for purchase of  the flat entered with the Complainant, the Opposite Party has no right to deduct cancellation charges of Rs.50,000/- and such deduction amount is unfair trade practice on the part of the Opposite Party. Therefore the Complainant is entitled for refund of the balance amount of Rs.50,000/- from the Opposite Party and failure to refund the said amount to the Complainant, the Opposite Party committed unfair trade practice and thereby committed deficiency in service.

8. POINT NO: 2

          Since the Opposite Party committed unfair trade practice by withholding sum of Rs.50,000/-  out of the amount received from him by way of advance, the          Complainant is entitled for refund of the said amount from the Opposite Party and also with interest 9% from 07.11.2013 to till the date of this order. A sum of Rs.2,250/- was incurred for taking demand draft in the name of the Complainant and hence  for such amount the Complainant is not entitled. The Complainant prayed compensation for mental agony and deficiency in service and for the same it would be appropriate to order a sum of Rs.50,000/- by way of compensation to the Complainant, besides a sum of Rs.5,000/- towards litigation expense.

          In the result the Complaint is partly allowed. The Opposite Party is ordered to refund a sum of Rs.50,000/- (Rupees fifty  thousand  only) to the Complainant with 9% interest from  07.11.2013 to till the date of this order 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 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 30^th day of March 2017.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 25.09.2013                   Payment Receipt for Rs.1,00,000/- issued by the

                                                     Opposite Party

Ex.A2 dated 07.11.2013                   Payment receipt for Rs.7,00,000/- issued by the

                                                    Opposite Party  

Ex.A3 dated 22.11.2013                   First cancellation letter

Ex.A4 dated 27.01.2014                   Refund amount

Ex.A5 dated 26.02.2014                   Letter sent by the Complainant to the Opposite

                                                     Party

Ex.A6 dated 01.03.2014                   Acknowledgement card

Ex.A7 dated 12.03.2014                   The Complainant made police Complaint against

                                                     the Opposite Party

Ex.A8 dated 24.03.2014                   Refund of Advance Rs.7,47,750/- to the

                                                    Complainant by the Opposite Party

Ex.A9 dated 02.04.2014                   Second letter sent by the Complainant to Opposite

                                                    Party for the balance amount of Rs.50,000/-

Ex.A10 dated 11.04.2014                 Acknowledgement Card

 

MEMBER – II                                                               PRESIDENT