Tamil Nadu

South Chennai

399/2010

D.Manoharan - Complainant(s)

Versus

VGP Housing Pvt Ltd,Manager - Opp.Party(s)

S.Devika

05 Dec 2017

ORDER

                                                                        Date of Filing :   07.07.2010

                                                                        Date of Order :   05.12.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

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

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.399/2010

TUESDAY THIS 5^th  DAY OF DECEMBER 2017

1.  Dr. D. Manoharan(Deceased),

 

2. Dr. Mrs. P.Patricia Manoharan,

24, Railway Road,

Kanchipuram.                                                Complainants

 

                                         Vs 

 

M/. VGP Housing Private Limited,

VGP Squre,

No.6, Dharmaraja Koil Street,

Saidapet, Chennai 600 015.                          .. Opposite party

 

Counsel for Complainants          :   M/s.S.Devika & T. Mohan         

Counsel for opposite party         :   M/s. Shivakumar & Suresh   

ORDER

THIRU. M. MONY, PRESIDENT

 

This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to refund a sum of a sum of Rs.47600/- and another sum of Rs.65600/- totaling Rs.1,13,200/- and also to pay a sum of Rs.2,00,000/- towards compensation for mental agony and Rs.1,00,000/- for unfair trade practice and Rs.10,000/- as cost of the complaint.

 

1. The averment of the complaint in brief are as follows:

         The complainant submit that  the complainants 1 & 2 booked  plot at VGP Ishwarya Nagar at Tambaram after impressed by the advertisement of the opposite party and by the canvassing and assurances of their representative Mr.Velu and paid a sum of Rs.1,13,200/-.  The representative of the opposite party Mr.Velu also assured that the said amount will be adjusted towards V.G.P Wonderland.   The complainant further state that since the opposite party suppressed the fact of non approval of the plot and received the part amount and sale consideration the complainant disagreed for availing the plot and requested the allotment of plot in  Ishwarya Nagar.  The opposite party instead of allotting plot in Parijatham Nagar, Kancheepuram requested to avail the plot in different places like Vallakottai.  Hence the complainant requested to refund the entire amount with interest.  But the opposite  party sent a cheque for Rs.86,200/- in different dates.    The opposite party has not paid the entire amount, the act of  the opposite parties amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.

2.    The brief averments in the Written Version filed by the opposite parties are  as follows:

      The opposite party deny each and every allegations except those that are specifically admitted herein.     The opposite party submit that the complaint is completely barred by the period of limitation and on the ground itself, the complainant is liable to be dismissed u/s 24 A of the C. P. Act 1986.  Further opposite party state that  it is denied that the complainant paid a sum of Rs.1,13,200/-.  As per the records available with them the opposite party had only received  a sum of Rs.86,200/- VGP Aishwary Nagar Project and the said amount has been already sent to the complainant by way of cheques drawn on Synidcate bank on various dates.   The request of the complainant for allotment of plot in Parijatham Nagar was not considered since the opposite party did not have vacant plots in Parijatham Nagar in Kanchipuram.   Further the opposite party state that  in fact the complainants requested the opposite party through their legal notice dated 1.7.2008 to cancel the allotment of plot and refund the amount.  As per their request the opposite party also  refunded a sum of Rs.86,200/-.    There is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

3.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as her evidence and documents Ex.A1 to Ex.A16 marked.  Proof affidavit of opposite party filed and no documents marked on the side of the  opposite party.

4.   The points for the consideration is: 

1. Whether the complainant is entitled to a sum of Rs.47600/- and another sum of Rs.65600/- totaling Rs.1,13,200/- as prayed for?

2. Whether the complainant is entitled to a sum of Rs.3,00,000/- as compensation for mental agony and unfair trade  practice with cost of Rs.10,000/- as prayed for?

5.  ON POINT:

         Heard both sides.  Perused the records (viz) complaint, written version, proof affidavits and documents.  The learned counsel for the complainant contended that the complainants 1 & 2  booked  plot at VGP Ishwarya Nagar at Tambaram after duly impressed by the advertisement of the opposite party and by personal canvassing and assurances of the representative Mr.Velu and paid a sum of Rs.1,13,200/-  (Rs.47,600/- & Rs.65,600/-) as advance.  The representative of the opposite party Mr.Velu also assured that the said amount will be adjusted towards V.G.P Wonderland.   The learned counsel for the complainant further contended that since the opposite party suppressed the fact of non approval of the plot and received the part amount towards sale consideration the complainant not satisfied and disagreed for availing the plot and requested the allotment of plot in  Ishwarya Nagar.  The opposite party instead of allotting plot in Parijatham Nagar, Kancheepuram requested to avail the plot in different places like Vallakottai.  Hence the complainant requested to refund the entire amount with interest.  But the opposite  party sent a cheque for only Rs.86,200/- in different dates.  Since the opposite party has not paid the entire amount, the complainant has neither collected the amount nor encashed the cheque.   Further the learned  counsel for the complainant contended that the opposite party come forward to sell the an approved plot, suppressing the real facts which amounts to unfair trade practice and deficiency in service. 

6.     Further the learned counsel for the complainant contended that even after repeated letters and request the opposite party has not properly responded. Hence the complainant was constrained to issue legal notice dated 12.11.2009.  Thereafter the opposite party has  sent a reply along with four cheques for different dates for a sum of  Rs.86,200/- suppressing the actual payment made by the complainant.   Hence the complainant was constrained to file this case  for refund of the amount paid with interest and compensation.  But on a careful perusal of the records filed by the complainant it is seen that the complainant produced receipts only for a sum of Rs.52,000/- as per Ex.A4 to Ex.A8.   Further the learned counsel for the complainant contended that the allegation of limitation to file this complaint raised by the opposite party is untenable, this complaint is filed on 7.7.2010 the opposite party sent cheques with reply letter dated 30.7.2008.   Equally the deficiency of service by a promoter / builder comes under the Consumer Protection Act 1986.  

7.     The learned counsel for the opposite party contended that the VGP Wonder Land Limited is a separate legal entity and this opposite party is no way connected with the VGP Wonder Land Limited. Equally the shares  of the VGP Wonder Land Limited  and proposal for investment by the complainant cannot be mingled with each  other.       Further the learned counsel for the opposite party contended that this complaint is barred by limitation.  The legal notice dated 1.7.2008 Ex.A16 could not save the limitation.  But on a careful perusal of the complaint and other records including Ex.A15 it is seen that this complaint is filed on 7.7.2010.   As per Ex.A15 the opposite party refunded a sum of Rs.86200/-  by way of different cheques with covering letter dated 30.7.2008.  Hence the complaint is within time and not suffered for limitation.  Further the  learned counsel for the opposite party contended that there is no unfair trade practice exercised by the opposite party.  The complainant has not produced any phamplet or other document to prove the lucrative offer to sale the plot.  Ex.A1 is an unsigned document and it cannot be relied upon in this case.   But on a careful perusal of Ex.A1 it is very clear that the opposite party in his letter pad made some calculation  giving offer for plot to the complainant.  Even though Ex.A1 having no signature,   Ex.A1 letter pad belongs to the opposite party is not denied.  Further the learned counsel for the opposite party contended that the complainant paid  some installments towards the plot.  They were very irregular in payment of installment  as per Ex.A4 to Ex.A8 receipt is for only Rs.36,000/-.  But on a careful of perusal of Ex.A4 to Ex.A8 it is seen that the receipt for Rs.52,000/- is produced by the complainant.    Further the learned counsel for the opposite party contended that since the complainant has not accepted the plot and demanded for refund of the amount after verification of the accounts, the opposite party refunded a total sum  of Rs.86,200/- by way of different cheques namely Ex.A14, and Ex.A15 which also only for Rs.60,000/-.  The opposite party failed and neglected  to produce their books of account to prove what is the actual amount received from the complainant.   Admittedly the complainant is a female senior citizen we cannot expect to keep all the records in tack of this old age.   Further the contention of the  opposite party is that the allegation of payment of Rs.1,13,200/- including a sum of Rs.4,000/- towards VGP Wonder Land shares are false.   The complainant paid only a sum of  Rs.86,200/- alone towards two plots namely Rs.43,600/- each.   But the opposite party has not produced any account book or records to that effect also.   Further the learned counsel for the opposite party contended that for what reason the complainant has not encashed the cheque not explained.   But it is  very clear from the complaint and proof affidavit that, since the opposite party has not paid the entire amount with interest the complainant returned the cheques of the opposite party as perEx.A16.    Considering the facts and circumstances of the case this Forum is of the considered view that the  opposite party admitted by  paid only a sum of Rs.86,200/- to the complainant.  On the other hand the complainant has not proved that he has paid Rs.1,13,200/-.  Without proper proof  no amount shall be claimed.    Hence the opposite party shall pay a sum of Rs.86,200/-  with interest at the rate of 9% p.a. from the date complaint i.e. 7.7.2010 to till the date of this order i.e. 5.12.2017 and shall pay compensation of Rs.25,000/- towards mental agony with cost of Rs.5,000/- and the points are answered accordingly.

In the result the complaint is allowed in part.  The opposite party shall pay a sum of Rs.86,200/- (Rupees Eighty six thousand and two hundred only) with interest at the rate of 9% p.a. from the date of complaint i.e. 7.7.2010 to till the date of this order i.e. 5.12.2017 and shall pay compensation of Rs.25,000/- (Rupees Twenty five thousand only) towards mental agony with cost of Rs.5,000/-  (Rupees Five thousand only) to the complainant.  

The aboveamounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a 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 Forum on this the 5^th day  of  December  2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants’ side documents:

Ex.A1-                 -  Copy of Scheme details given by the opp. party.

Ex.A2- 30.3.1985  - Copy of equity shares issued by the opp. party.

Ex.A3- 27.1.1999  - Copy of letter from the opp. party to complainant.

Ex.A4- 9.4.1999    - Copy of receipt.

Ex.A5- 9.4.1999    - Copy of receipt.

Ex.A6- 28.4.1999  - Copy of receipt.

Ex.A7- 28.8.1999  - Copy of receipt.

Ex.A8- 21.9.1999  - Copy of receipt.

Ex.A9- 6.10.2005  - Copy of letter from the complainants to the opp. party.

Ex.A10-31.10.2005        - Copy of letter from the complainants to the opp. party.

Ex.A11- 2.1.2006  - Copy of letter from the complainants to the opp. party.

Ex.A12- 23.1.2006         - Copy of letter from the opp. party to the 2^nd complainant.

Ex.A13- 7.9.2006  - Copy of letter from the opp. party to the 2^nd complainant.

Ex.A14- 14.10.2006- Copy of letter from the opp. party to the 2^nd complainant.

Ex.A15- 30.7.2008         -  Copy of letter from the opp. party to the 2^nd complainant.

Ex.A16- 12.11.2009- Copy of notice.

 

Opposite party’s side document:       Nil    

 

MEMBER-I                        MEMBER-II                             PRESIDENT.