Tamil Nadu

North Chennai

CC/69/2017

Manohar Krishnan - Complainant(s)

Versus

The Managing Director VGN Developers P Ltd - Opp.Party(s)

party in person

06 Aug 2018

ORDER

                                                            Complaint presented on:  23.02.2017

                                                                Order pronounced on:  21.08.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

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

 

PRESENT:  TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL PRESIDENT

 

THIRU.D. BABU VARADHARAJAN B.Sc., B.L., :   MEMBER – I

 

TUESDAY  THE  21^st  DAY OF AUGUST 2018

 

C.C.NO.69/2017

 

Manohar Krishnan,

65, Raju Nagar, 3^rd Street,

Thoraipakkam,

Chennai – 600 097.

 

(Has duly appointed and authorized

 his father VR Krishnan to file the

 complaint  and represent him)

                                                                                    ….. Complainant

..Vs..

The Managing Director,

VGN Developers P Ltd.,

No.15, Wallace Garden Road,

Second Street,

Nungambakkam,

Chennai – 600 034.

.....Opposite Party

Date of complaint                                 : 15.06.2017

Counsel for Complainant                      : Party in Person

 

Counsel for   Opposite Party                    : K.Harishankar, Srinath Sridevan,

                                                                   T.K.Bhaskar

 

 

 

O R D E R

 

BY PRESIDENT TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL

          This complaint is filed by the complainant to refund of balance amount of Rs.6,10,434/- which includes the  interest, compensation and cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant is authorised by and has been  duly being appointed by Mr.Manohar Krishnan to file the complainant to represent the case Mr.Manohar Krishnan contracted with the opposite party to buy the  flat No.C4 8D, in their Fairmont complex and paid the advance of Rs.1,00,000/-. Subsequently he had also paid two instalments of Rs.6,51,322/- & 6,65,000/- totally of Rs.14,16,322/-  .The opposite party   failed to issue  proper receipts, allot the promised unique customer ID and password to give the allotment letter, to execute a valid agreement for non  stamp paper attested by proper witnesses duly registered. Since Mr.Manohar Krishnan’s application to USA got matured and he was offered Green Card for himself and his family and has to rush USA suddenly. Before his departure he asked the opposite party to cancel and refund the amount paid by him since he was in dire need of funds for his journey. Even after the e-mail and phoning to opposite party  he had not cared to acknowledge, thereby causing unbearable mental agony and trauma to the complainant and caused loss of money, prestige and reputation to the complainant and preventing to meet  the financial commitment and borrowing and high interest rates by failing to refund the amount 14,16,322/- for ten long months. Then opposite party returned 11,28,826/- in three instalments ending on 20.12.2016  after deducting Rs.2,87,496/- as two percent penalty charges on flat cost.  The Opposite party citing the Application Forms as the agreement forms is  an afterthought and wrong. The opposite parties violated the terms and conditions in all respects and failed to execute the valid sale agreement on their own fault. Under the circumstances this complaint is filed by the complainant whether to refund of total amount paid with interest

2. WRITTEN VERSION OF THE 1^st OPPOSITE PARTY IN BRIEF:

          The complainant had booked a residential flat at VGN Fairmont complex, Guindy and paid a total advance amount of Rs.14,16,322/- on 27.11.2015.   The opposite party generates a Unique Customer ID and password to each and every customer once the first stage of all the  booking formalities are complete and immediately issues allotment letters once the booking has been completed. The opposite party had prepared the construction Agreement and the Agreement for sale with respect to the subject property of the complainant on 13.01.2016. Inspite of several reminders and requests the complainant has not turned up. He did not even try to come in person to execute the registration before the Sub-Registrar’s office. The complainant failed to come and execute the registration of the construction Agreement and the Agreement of sale. It is true that the complainant had paid an advance amount of Rs.1,00,000/- for  purchasing his flat. Likewise he had paid Rs.Rs.6,51,322/- and Rs.6,65,000/- in two instalments and in total he had paid Rs.14,16,322/-  including the advance payment. The opposite party further submit that as per the request made by the complainant he has refunded a sum of Rs.11,28,826/- in 3 instalments after deducting Rs.2,87,496/- which is 2%penalty on the total flat cost. The excerpts from the booking form, cancellation clause are as stated below:

“Before agreement A: Incase at any stage, the applicant seeks cancellation of the booking before signing the agreements, 2% of the flat cost will be deducted as cancellation fee but the company, and balance amount will be refunded. All such refunds shall be made only after identifying an alternate buyer and also on receipt of the payments from the said alternate buyer or a period of 120 days, whichever is earlier from the ate of receipt of cancellation letter from the customer.”

It is thus brought to light that the same booking form was thoroughly read by the complainant and signed with complete consent.

3. The said cancellation charge was collected from the complainants as per the terms agreed in the booking form and there was no compulsion or coercion on the complainant to sign the same. The complainant being prudent customer after reading and understanding the contents of the agreement executed the same and agreed to the clause of the agreement as mentioned in the booking form, leveling such allegations against the opposite party after having agreed to pay for the 2% deduction along with the cancellation charges the same is not maintainable in law and the complainants are specifically barred by the Principle of Estoppel. There are no merits in the contention of the complainant or there has not been any deficiency in service by the opposite party and the complaint is liable to be dismissed as vexatious.

4. 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 extent?

 

5. POINT NO :1 

The Complainant is represented by his father Under Ex.A1, Authorization letter. The complainant entered into agreement with the opposite party to buy a Flat No. C4 8D at Fairmont Complex, Guindy and paid an advance of Rs.1 lakh on 03.11.2015 as shown in Ex.A2.  Under Ex.A3, he paid Rs.6,51,322/-, and  6,65,000/- i.e. a total amount of Rs. 14,16,322/-on 27.11.2015. These facts are not denied by the opposite party. The contention of the complainant is that the opposite party  had failed to issue proper receipts for payment, unique customer ID and password as promised, Allotment letter, Valid Agreement Form on  stamp paper attested by proper witnesses duly registered.

6. He further contends that the opposite party falsely claims the application form as agreement form and the application form is filed as Ex.A4. The complainant’s application to USA got matured  suddenly, offering him green card, so he and his family had to rush to USA, for which he was in dire need of money therefore he wanted to cancel the booking of the flat and refund of money is sought in Feb.2016. The complainant called the opposite party  through phone and sent messages through e-mail for refund but there was no reply and the opposite party  had miserably failed to refund.  Finally opposite party had returned the money after 10 months that too in three installments after deducting 2,87,496/- as 2% penalty  on flat cost.  Therefore according to the complainant opposite party  had violated its terms and conditions in all aspects and failed to execute a valid Sale agreement on their own fault and he suffered mental agony and the act of opposite party  caused loss of money, prestige,  and reputation. Hence  the complaint is filed for the balance amount of Rs.6,10,434/- as per his calculation .

7. The opposite party opposes the complaint pointing out the matters raised by the complainant regarding the issues arising out of the commercial contract   between the parties cannot be dealt by this forum. Even though the commercial contract dispute issues would not fall within the purview of this Consumer protection act, the deficiency in service pleaded by the complainant is to be looked into by this forum. Hence complaint is maintainable.

         8. The complainant paid an advance amount of Rs.1,00,000/- in the month of Nov.2015 and subsequent payments are made  at the end of the same month totalling  to Rs.14,16,322/-. All the payments were made through bank transaction and cheques and the receipt of the amounts are not disputed at any stage by opposite party. The opposite party has also submitted the application form as Ex.B1. On 16^th Feb 2016, in e-mail sent by the complainant was addressed to opposite party  stating his desire to settle in USA, and regretting to cancel his booking. The application form was signed by the complainant at that point of time and his request not to charge the cancellation reveals that he knew the terms and conditions as incorporated in the application form therefore only a request is made to that effect because of his initiation of cancellation due to his own reasons, not on the  default of the opposite party. Again the opposite party was reminded through e-mails dated 20.04.2016. in Ex.A5. and also on 10.09.2016 in Ex.A6 and it was replied by opposite party promptly on the same day stating that the process is progressed. It is also noticed that 06.09.2016 e-mail sent by the complainant was replied by opposite party  on 07.09.2016.

          9. Finally , opposite party  had   returned the  money through cheque after deducting the penalty amount  of 2% of the cost of the flat as per the terms and conditions agreed on 19.11.2016 refund of Rs. 5,00,000/-requested to be encashed  on 28.11.2016 and  another  cheque for an amount of Rs. 5,28,826/- on 08.12.2016 and opposite party has regretted for the delay in the same letter Ex.A7. These correspondences had taken place between the complainant and the opposite party. The e-mail exchange between the father of the complainant, who is an authorized person and opposite party  had taken place only at a later stage in Ex A8. However he tried to get appointment but failed in his attempt.

        10. From the documents Ex.A10, it is inferred that even though some of the mails are failed subsequent to that  Unique customer ID  and password  was made known to the complainant  as noticed in the first page of  Ex.A4 and in Ex.A9 and request for personal data was called for and correspondence took place to enable the opposite party to prepare the agreement and along with that a draft agreement and also a sale agreement was prepared and  sent to complainant and further progress was delayed due to  the complainant’s non availability in India as per his reply mail in Ex.A11 to Ex.A13.

        11. Therefore it is confirmed that opposite party  was ready to do his part but due to delay caused by the complainant it was not proceeded  further. Soon after this, the complainant sought for cancellation of the flat for his personal reason of his own choice. It is also pertinent to note that once the booking is confirmed allotment is made that is why the complainant is able to file in the complaint’s pointing out his  flat is in C4 8D in the complex and is well aware of the same.   Hence  deficiency in  not proving receipts, unique ID, Password, Allotment Letter, and execution of agreement as alleged by the complainant against the opposite party  is not considered as a correct one and there is  no deficiency in service  by opposite party  so far as the above discussed points are concerned.

         12. It is not the case of the complainant that he has not encashed the cheque for the refunded amount. The terms and conditions existing in the application is accepted   and signed by both parties.  Cancellation clause in the application reads into two parts in which we are concerned only to the earlier part and the payment default clause reads:

Cancellations:

      Before Agreement: A. Incase at any stage, the applicant(s) seeks cancellation of the booking before signing the agreements, 2% of the flat cost will be deducted as cancellation fee by the company, and the balance amount will be refunded. All such refunds shall be made only after identifying an alternate buyer and also on receipt of the payments from the said alternate  buyer or a period of     120 days. Whichever is earlier from the date of receipt of cancellation letter from the customer.

Payments Defaults:

      Before agreement: If the customer falls to make payments as given in the payment schedule or fails to make the entire booking amount within 7 days of signing this booking form, VGN reserves the right to cancel such booking after deducting 2% of the cost as cancellation fee by the company, and the balance amount will be refunded. All such refunds shall be made only after  identifying an alternate buyer and also on receipt of the payments from the said alternate buyer or a period of 120 days, whichever is earlier from the date of receipt of cancellation letter from the customer.

therefore the balance amount of Rs.11,28,826/- is refunded as incorporated in the application form.

        13. When the contents of the application form is read and without any compulsion signed by the complainant and paid some amount as per the application and the amount is received by op amounts to an implied agreement. The cancellation charge were also collected according to the agreed terms in the application. The terms and conditions of the agreement entered into between the builder and the allottee determines the refund of booking amount if the application (i.e. prior to agreement) signed by both, contains a clause that the builder has right to forfeit certain percentage of the booking amount, then there is no legal recourse. Having agreed to abide by the conditions put forth by opposite party, and signed  with free consent, the complainant is stopped  from disputing  thereafter.

          14. But there is also a clause to refund the booked amount after identifying a buyer if found or a period of 120 days whichever is earlier and there is no indication as to prosperous buyer’s availability and nothing is pointed out by either of them  regarding a buyer to the flat and therefore opposite party  has to refund  the cancellation amount after appropriate deduction  after 4 months of its cancellation as per agreement. Admittedly the cancellation was in the month of Feb 2016 and opposite party  ought to have refunded the amount in the month July 2016. Refund was given only in the month of Dec 2016.

15. POINT NO:2

         Therefore to that part of deficiency the complainant, the opposite party  is directed  to pay Rs.1,01,595/- (as per calculation on the refunded amount of Rs.11,28,826/-  @ 18% interest for 6 months) Complainant suffered mental agony  due to non receipt of refund  amount at the appropriate time of his necessity ,and his aged father  being authorized to look after the matter in India was left with mental stress  is quite reasonable and acceptable one. Therefore it is fit to order Rs.25,000/- for mental agony besides the cost of Rs.5,000/-Accordingly, point no1 and 2 are answered.

             In the result, complaint is allowed in part and the opposite party  is directed to pay Rs.1,01,595/- (Rupees one lakh one thousand five hundred and ninety five only)  (as per calculation  on the refunded amount  of Rs.11,28,826 (Rupees eleven lakh twenty eight thousand eight hundred and twenty six only)  @ 18%  interest for 6 months) and also to pay a sum of Rs.25,000/-(Rupees twenty five thousand only) 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 21^st  day of August 2018.

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated  15.01.2017                   Authority Letter by Mr.Manohar Krishnan’s

Ex.A2 dated         03.11.2015                   Receipt for Rs.1 Lakh for Advance Paid

Ex.A3 dated 16.02.2016                   Account for Amounts paid

Ex.A4 dated NIL                     VGN Application Form

Ex.A5 dated         20.04.2016           Reminder for payment of Refund

Ex.A6 dated 10.09.2016                   Reminder of Many Mails Sent

Ex.A7 dated NIL                     Account Statement of opposite party

Ex.A8 dated NIL                     VGN MD’s Refusal to Meet

Ex.A9 dated 13.11.2015                   Unique Customer ID              

Ex.A10 dated 13.11.2015                 Failure of Customer Portal

Ex.A11 dated 06.01.2016                 Request for Personal Data

Ex.A12 dated 13.01.2016                 Request for PAN Card

Ex.A13dated 27.01.2016                  Two Agreements Sent

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

Ex.B1 dated 20.11.2015                   Application form the complainant

                                               

 

                                               

MEMBER – I                                                               PRESIDENT

 

 

 

 

 

 

 

 

 

 

 

The complainant is authorised by and has been  duly being appointed by Mr.Manor Krishnans to file the complainant to represent the case MK contracted with the opposite party to bya flat No.    . Subsequently he had also paid to instalments of Rs       .The opposite party paid to issue to proper receipt, allot the promised unique customer ID and password to give the allotment letter to execute a valid agreement  stamp paper attested proper witness duly registered. Since MK application to USA got to mature and he was offered green card himself and his family therefore he had  rush USA suddenly. Before his departure he asked the opposite party to cancel and refund the amount paid by him since he was in dire need of funds for his journey . Up to the e-mail and telephonic to opposite party had not cared to acknowledge thereby causing unbearable mental agony and drama to the complainant and cost loss of money prestige and reputation and prevented meeting is financial commitment and borrowing and high interest rates by failing to refund the amount 14,16,322/- for ten long months. Then opposite party returned 11,28,826/- in three instalments ending on 20.12.2016  after deducting Rs.2,87,496/- as two percent penalty charges on flag cos. Oppos citting application forms the agreement forms is after thought and drawn ops violated the terms and conditions in all respects and failed to excute to valid sale agreement and own fault. Under the circumstances this complainant is filed by the complainant whether refund of total amount paid with interest