Tamil Nadu

South Chennai

CC/416/2022

Sakthivadivel Siva Shanmugam - Complainant(s)

Versus

VGN Projects Estates Private Limited - Opp.Party(s)

M/s. Sri Hari & Associates

31 May 2023

ORDER

  Date of Complaint Filed:07.12.2022

  Date of Reservation     :16.05.2023

  Date of Order              :31.05.2023

          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.416/2022

WEDNESDAY,THE 31^st DAY OF MAY 2023

 

Sakthivadivel Siva Shanmugam (M/42 years),

S/o. Sivalingarajan,

72A, Akshaya Flats,

Ganamani Street, Jafferkhanpet,

Chennai – 600 083.                                                        .. Complainant.

-Vs-

 

VGN Projects Estates Private Limited,

Rep. by its Authorised Signatory,

No.153, Wallace Garden, 2^nd Street,

Nungambakkam,

Chennai – 600 006.                                                        .. Opposite Party.

* * * * *

 

Counsel for the Complainant      : M/s. Sri Hari & Associates

Counsel for Opposite Party         : Exparte on 10.02.2023

 

 

On perusal of records and upon hearing the oral arguments of the counsel for Complainant, this Commission delivered the following:

ORDER

Pronounced by Member-II, Thiru. S. Nandagopalan., B.Sc., MBA.,

(i) The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to declare the 5% deduction made by the Opposite Party on the unit cost of the flat amounting to Rs.3,00,593/- as cancellation fee as unfair contract and to refund the booking amount of Rs.6,20,000/- with interest @18% p.a from the date of receipt of payment (I.e) 05.03.2020 and to pay a sum Rs.3,00,000/- towards the unfair trade practice adopte by the Opposite Party and to pay a sum of Rs.3,00,000/- towards mental agony and stress faced by the Complainant at the hands of the Opposite Party along with cost.

I.     The averments of Complaint in brief are as follows:-

1.     The Complainant submits that he was attracted by the Opposite Party project advertisement namely VGN Temple town at Thiruverkadu offering flats with all amenities and in order to fulfil his dream to own a flat for living. Hence enquired about the cost of the flat in the month of February 2020, The marketing officer of the Opposite Party further allured that it is one of the best projects and informed that the cost of the flat would be around Rs.62,00,000/- , furthermore the Complainant submits that on further enquiry about the project approval and date of delivery of the flat etc., replying to the same Opposite Party representatives pressurised the Complainant to pay a 10% of the cost of the flat i.e Rs.6,20,000/- immediately, failing which he may miss the flat. Hence on the pressure shown by the Opposite Party the Complainant immediately booked a 3 bedroom flat i.e  B-212 and the Opposite Party obtained signatures in the application form dated 29.02.2020 henceforth the Complainant paid Rs.6,20,000/- vide cheque No.068711 dated 05.03.2020 and the same was encashed by the Opposite Party by issuing the receipt dated 05.03.2020. The Complainant submits that as per Opposite Party payment terms the cost of the flat should be paid according to stage wise construction and in this regard after going through the payment schedule provided by the Opposite Party vide email dated 18.03.2020, but the Complainant decided to cancel the booked flat due to Covid-19 pandemic due to financial constraints and the same was informed to the Opposite Party.

2.     The Complainant stated that the Opposite Party accepted the cancellation after 6 months of the Complainants intimation and confirmed the same by email dated 13.11.2020. Hence the Opposite Party is bound to refund the initial amount of Rs.6,20,000/- paid at the time of booking within a period of 60 days as stipulated in the application form. Further the Complainant submits that after repeated request for refund of booking amount to the Complainants shock the Opposite Party informed that 5% of the total cost of the flat i.e on 62,00,000/- amounting to Rs.3,00,593/- approximately 50% of the booking amount will be treated as cancellation charges. Further the Complainant alleges that considering the facts the Opposite Party had not sustained any loss or damage by the said cancellation instead profitably sold the flat to other third party however the Complainant had to suffer exorbitant cancellation fee amounting to Rs.3,00.593/- out of the paid amount of Rs.6,20,000/- which is unreasonable and against the interest of the consumers. The Complainant submitted that the Opposite Party had been insisting the Complainant to agree for 5% deduction from the cost of the flat for immediate payment and the Complainant was put to duress and compelled to agree to the said condition. Henceforth the Opposite Party acknowledged its liability vide email dated 19.03.2021 and requested the Complainant to provide the bank details to process the refund amount. Further the Opposite Party stated it will take 90 days to complete the refund process. Accordingly, the Complainant submitted bank details to the Opposite Party vide email dated 20.03.2021, however the Opposite Party did not refund the booking amount.

3.     The Complainant further submitted that thereafter several e-mail reminders dated 22.09.2021, 24.09.2021, 25.09.2021, 27.09.2021, 28.09.2021 & 27.11.2021 was sent to the Opposite Party for refund of booking amount, however there was no proper response from the Opposite Party. Further the Opposite Party acknowledged its liability vide email dated 08.12.2021 stating that since it is a financial year end, process for the refund would be done in the month of January 2022, however the Opposite Party did not comply with the same. The Opposite Party keeps on giving false promises and commitments without having any bonafide intention to fulfil the same. Complainant further alleges that whenever phone calls were made to the Opposite Party, the Opposite Party had been stating refund will be done by week end or month end etc., giving false promises and willfully and intentionally cheated the Complainant.

4.     Hence Complainant sent legal notice dated 16.07.2022 to the Opposite Party and the Opposite Party had acknowledged its liability and sent lawyer's reply dated 29.07.2022 admitting its liability and stated the Opposite Party is ready to refund the amount of Rs.3,19,406 after deducting cancellation charges of Rs.3,00,593/-.

5.     Further the Complainant submits that the Opposite Party once again promised to refund the booking amount immediately provided the Complainant issues no further claim letter to the Opposite Party. The Complainant believing the words of the Opposite Party issued a letter dated 11.10.2022, however the Opposite Party did not honour its commitment and cheated the Complainant again. Henceforth  aggrieved by the Opposite Party behaviour Complainant underwent severe stress, mental agony and monetary loss, hence filed a case to seek the redressal. Hence the Complaint.

II. The Opposite Party was set ex parte:

        Notice was sent to the Opposite Party and was duly served to the Opposite Party. Despite the notice being served to the Opposite Party he had failed to appear before this Commission either in person or by Advocate on the hearing date and not filed any written version on their side.  Hence the Opposite Party was called absent and set ex-parte. Subsequently, the case was proceeded to be heard on merits.

III.   The Complainant has filed his proof affidavit and Written Arguments,  in support of his claim in the complaint and has filed documents which are marked as Ex.A-1 to A-12.

IV. Points for Consideration:-

 

1. Whether there is negligence and deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

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

POINT NO. 1 :-

6.     On careful perusal of Complainant averments and the relevant documents it is admissible that the Complainant booked flat with the Opposite Party ongoing project namely VGN Temple town at Thiruverkadu on 29.02.2020 as seen in Ex.A-1 i.e Application cum Booking form confirming the Complainant booking by allocating the 3 bedroom flat No.B-212 for Rs.62,00,000/- approximately. Henceforth the Complainant paid Rs.6,20,000/- towards the advance payment i.e 10% of the total cost of the flat as found in Ex.A-2 vide Cheque No.068711 dated 05.03.2020 and for the same Opposite Party issued a receipt No.10010560 by confirming the booking. Followed by the advance payment & booking confirmation Opposite Party sent a payment schedule to the Complainant via email dated 18.03.2020 as seen in Ex.A-3. Further the Complainant averred that he decided to cancel the flat being it was not feasible to continue amidst Covid-19 pandemic outbreak. Hence the Opposite Party accepted the cancellation and confirmed the same by email to the Complainant dated 13.11.2020 as seen in Ex.A-4. The Complainant alleged that he was continuously following up with the Opposite Party representatives for the refund of booking amount replying to the same Opposite Party sent a mail to the Complainant as found in Ex.A-5 dated 19.03.2021 & 20.03.2021 confirming the refund of Rs.3,19,406/- i.e after 5% deduction on the total cost of the flat towards cancellation charges and requesting 90 working days time to process the refund by subsequently requesting the Complainant to share the bank details along with the cancelled cheque copy. Henceforth Complainant agreed 5% deduction from the advance payment and asked the Opposite Party to process the refund as soon as possible as per the mail dated 24.04.2021.

7.     Thereafter the Complainant is persistently requesting and following up by frequently sending emails to the Opposite Party for the refund of the booking amount as seen in Ex.A-6 & A-7 i.e from 31.05.2021 to 07.12.2021. It is pertinent to note that even after the acceptance of cancellation, the Opposite Party took more than a year to refund the Complainant booking amount even after repeated follow ups as seen in the relevant documents filed by the Complainant. As per Ex.A-8 dated 08.12.2021 the reply mail by the Opposite Party acknowledging their liability to the Complainant mails stating that due to the Financial year end the refund process is getting delayed hence the refund will be done only in January 2022. On careful observations of the sequence of happenings it is apparent to notify that the Opposite Party failed to refund the Complainants booking amount at the very early stage of the cancellation of the flat instead taking too much of time and multiple failure commitments by causing pain and mental agony to the Complainant is evident even after the frequent follow ups is unjustifiable. On 16.07.2022 aggrieved by the Opposite Party failure commitments Complainant sent a legal notice as seen in Ex.A-9 addressing the Opposite Party to refund the booking amount within a period of 7 days failing which the Complainant is constrained to take appropriate legal action against the Opposite Party. 

8.     As per Ex.A-10 dated 29.07.2022 the Opposite Party counsel reply to the Complainant notice stating that they are liable to refund only by deducting the cancellation charges of 5% of Rs.3,00,593/- and also claiming that the Complainant never came forward to complete the cancellation process. On scrutinising the Opposite Party reply notice and the Complainants documents the allegation kept on the Complainant is not sustainable as there were numerous occasions where the Opposite Party failed to perform their liability by allowing the Complainant to suffer by not refunding the booking amount for more than 2 years. On responding to the Opposite Party reply notice as per Ex.A-11 dated 06.08.2022 the Complainant clearly stated that they were vigorously following up the Opposite Party by sending frequent communication mails to get the refund hence they literally denied the Opposite Party claim of not coming forward towards the settlement is utter false by insisting the Opposite Party to settle the issue amicably. Eventually, expecting the refund of the booking amount from the Opposite Party, Complainant issued a letter as found in Ex.A-12 dated 11.10.2022 stating that the booking is cancelled mutually by agreeing to receive a sum of Rs.3,19,406/- as a full and final settlement by declaring not to have any lien or right over the above booked flat and not make any further or future claim in this regard.

9.     Even after the letter dated 11.10.2022 issued by the Complainant the Opposite Party failed to consider the refund of booking amount evidently demonstrates the malafide intentions of the Opposite Party and moreover it is exorbitant and reluctant behaviour noted on the part of Opposite Party in settling down the Complainant booking amount. On considering the facts and circumstances of the case we are of a considered view that the Opposite Party having failed to refund the booking amount had committed a clear case of deficiency in service causing mental agony and hardship to the Complainant hence the Complaint is allowed. Accordingly, Point No.1 is answered.  

 

POINTS NO 2 & 3

10.    As discussed and decided in Point No.1 against the Opposite Party, the Opposite Party is liable to refund the booking amount of Rs.6,20,000/- with interest @9% p.a from the date of receipt of payment and to pay a sum of Rs.10,000/- towards compensation for the unfair trade practice adopted by the Opposite Party along with cost for a sum of Rs.5,000/-. Accordingly, Point Nos. 2 and 3 are answered.

In the result, the complaint is allowed in part. The Opposite Party is directed to refund the booking amount of Rs.6,20,000/- (Rupees Six Lakh and Twenty Thousand Only) with interest @9% p.a from the date of receipt of payment and to pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) towards compensation for the unfair trade practice adopted by the Opposite Party along with cost for a sum of Rs.5,000/- (Rupees Five Thousand Only) to the Complainant within 8 weeks from the date of receipt of this order.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 31^st of May 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

      MEMBER II                          MEMBER I                            PRESIDENT

 

 

 

List of documents filed on the side of the Complainant:-

Ex.A1	29.02.2020	Application Form issued by the Opposite Party
Ex.A2	05.03.2020	Receipt issued by the Opposite Party
Ex.A3	18.03.2020	Payment scheduled sent by Opposite Party to the Complainant vide e-mail
Ex.A4	13.11.2020	Cancellation confirmed by the Opposite Party vide e-mail
Ex.A5	19.03.2021 & 20.03.2021	e-mail sent by Opposite Party requesting bank details of the Complainant to process refund and Bank details provided by the Complainant
Ex.A6	22.09.2021 to 25.09.2021	e-mail correspondence sent by Complainant to Opposite Party regarding status of refund
Ex.A7	27.09.2021 28.09.2021 27.11.2021 & 07.12.2021	e-mail correspondence sent by Complainant to Opposite Party regarding status of refund
Ex.A8	08.12.2021	e-mail received from Opposite Party stating refund will be done in January 2022
Ex.A9	16.07.2022	Legal Notice sent to Opposite Party
Ex.A10	29.07.2022	Reply notice received from the Opposite Party
Ex.A11	06.08.2022	Rejoinder sent to Opposite Party
Ex.A12	11.10.2022	No claim letter obtained from Complainant under Duress

 

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

-NIL-

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

      MEMBER II                          MEMBER I                            PRESIDENT