Tamil Nadu

North Chennai

CC/113/2016

J.Sivarama Krishnan - Complainant(s)

Versus

VIP Housing & Properties - Opp.Party(s)

S.Muthuvairam

05 Dec 2017

ORDER

 

                                                            Complaint presented on:  29.06.2016

                                                                Order pronounced on:  05.12.2017

 

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

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

TUESDAY THE 05^th DAY OF DECEMBER 2017

 

C.C.NO.113/2016

 

 

 

J.Sivaramakrishnan,

S/o S.Janakiraman,

No.9/4, Subramanian Avenue,

K.K.Road, Valmiki Nagar,

Thiruvanmiyur, Chennai – 600 041.

                                                                                    ….. Complainant

 

..Vs..

1.M/s. Jeayam Shelters Pvt. Ltd.,

Rep. by its Chairman,

Mr.B.Sampathkumar,

No.244, MTH Road,

Villivakkam, Chennai – 600 049.

 

2.M/s. VIP Housing & Properties,

No.17-B/1, Mahalinga Chetty Street,

Mahalingapuram,

Chennai – 600 034.

.....Opposite Parties

Date of complaint                                 : 15.07.2016

Counsel for Complainant                      : M/s.S. Muthuvairam, R.Balaji

Counsel for 1st Opposite Party                : Mr.R.Ponnusamy

                                                                (On 17.10.2017 set ex-parte and non

                                                                     filing of proof affidavit)                  

 

Counsel for 2^nd opposite party                       : Ex-parte (27.01.2017)

 

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.8,56,215/- with 18% interest from 20.05.2012 and also to pay compensation for not commencing the construction and there by indulged in unfair trade practice with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The 1^st opposite party proposed a project in the name and style of “Your dreams – phase II”  at Adambakkam in January 2012. For said the project, the 2^nd opposite party attached with the 1^st opposite party issued pamphlets by way of advertisement among the public. The complainant booked a flat No.4P in the said project measuring 855sq.ft. The complainant made a payment of Rs.10,56,215 /-   by way of various cheques during the period 18.02.2012 to 19.05.2012 towards the down payment through the 2^nd Opposite party.

          2. The opposite parties have not commenced the construction activities at all and there is no sign of commencing the work in the near future at the place of proposed project. The complainant met the opposite parties separately and they did not give proper answer about the project. Though the Opposite party has received 20% of the cost of the flat, the Opposite party avoided executing the sale deed and construction agreement and there by indulged in unfair trade practice. 

3. On 22.01.2014 the complainant went to the 1^st opposite party with a written request to refund the money. The 1^st opposite party while acknowledging the letter, he made an endorsement that he will be able to refund the money within 90 days. However, as assured the amount was not paid. Due to pressure given by the complainant to refund the amount, the 1^st opposite party during 1^st week of September,2014 gave four post dated cheques, each for a sum of Rs.2,00,000/- dated 30.09.2014, 30.10.2014, 30.11.2014, and 30.12.2014. He also gave another cheque dated 30.01.2015 for a sum of Rs.1,56,215 drawn on State Bank of India, padi branch. The complainant encashed the 1^st cheque for a sum of Rs.2,00,000/-. However the other cheques were returned for the reason of insufficient funds. The opposite parties failed to commence the project and also to refund the part amount due received from the complainant is deficiency on the part of the opposite parties. Hence the complainant filed this complaint to refund the balance amount of  Rs.8,56,215/- with 18% interest from 20.05.2012 and also to pay compensation for not commencing the construction and there by indulged in unfair trade practice with cost of the complaint.  

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

The 1^st opposite party under taken to develop the land measuring 83,355 sq.ft to construct multistoried building with 2 blocks at Adambakkam village, Chennai.  He has applied for planning permit, no objection certificate from Airport authority of India and from various other departments. While processing for the above said plan, the planning permission application was rejected vide letter dated 29.09.2012. The 1^st opposite party submitted application for revised plan on 17.11.2014. This opposite party has taken all the necessary steps for the said project. In the mean time the complainant has filed this complaint without any cause of action and hence the complaint is liable to be dismissed.

5. The 1^st opposite party though filed written version, he did not file proof affidavit and hence he was set ex-parte on 17.10.2017 for non filing of proof affidavit. The 2^nd opposite party received notice and he did not appear before this Forum on 27.01.2017 hearing and hence he was set ex – parte on that day.

6. POINTS FOR CONSIDERATION:

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

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

7. POINT NO :1 

The 1^st Opposite party proposed a project in the name and style of “ Your dreams – phase II” at Adambakkam in January 2012 and for the said project, pamphlets (Ex.A1) have been issued by way of advertisement among the public and the  complainant booked a flat No.4P in the said project measuring 855sq.ft. The complainant made a payment of Rs.9,56,215 /- to the opposite parties by way of various cheques during the period 18.02.2012 to 19.05.2012 towards advance amount and the 2^nd Opposite party issued Ex.A2 receipt for acknowledging the cheques for the aforesaid amount.

8. The opposite parties have not at all commenced the project inspite of that they have received nearly 20% of the total flat cost of Rs. 51,48,500/-. When the complainant questioned the same about the work has not been commenced, the opposite parties have not given proper reply. The 1^st opposite party admitted in his written version that he had applied for planning permit and NOC from various authorities. The planning permission was rejected by letter dated 20.09.2012 and further he applied revised plan on 17.11.2014. When the planning permission was rejected on 20.09.2012 and after 2 years only he had applied for revised plan. Absolutely, there is no explanation on behalf of the 1^st opposite party that after rejection of plan why he had not applied for revised plan immediately. This circumstance proves that the opposite party indulged in unfair trade practice. Further the complainant gave Ex.A3 letter dated 22.01.2014 to the 1^st opposite party to refund the amount paid by him and in the said letter he endorsed that we will able to refund the amount within 90days.

9. However he had not refunded the amount. Thereafter the 1^st opposite party gave four cheques each for value of two lakhs and 5^th cheque for sum of Rs.1,56,215/- towards refund of the amount paid by the complainant. The complainant encashed the 1^st cheque for sum of Rs.2,00,000/- and however the other cheque were returned has no funds. The return of cheques proves that the 1^st opposite party has no intention to refund the amount to the complainant is deficiency on his part. The 2^nd opposite party who had issued Ex.A2 receipt, for receipt of the advance amount from the complainant, he is also liable for the act committed by the 1^st opposite party.

10. Therefore from the foregoing conclusions that the 1^st opposite party failed to apply for revised plan for more than 2 years and not at all commenced the project and also the cheques issued by him towards refund of the advance amount, was returned as no funds establishes that the opposite parties 1 & 2 have committed unfair trade practice and there by committed deficiency in service.

11. POINT NO:2

The complainant paid a sum of Rs.9,56,215/- under Ex.A2 and also paid another sum of Rs.1,00,000/- under Ex.A7 and thus he had totally paid a sum of Rs.10,56,215/-. To repay the said amount the 1^st opposite party issued 5 post dated cheques to the complainant and the complainant encashed one cheque for the value of the Rs.2,00,000/- and for the balance amount the cheques were returned as no funds. Therefore the complainant is entitled for refund of the balance amount of Rs.8,56,215/- from the opposite parties and accordingly the opposite party can be ordered to refund the said amount with 12% interest from 20.05.2012 to till the date of this order.

12. The advance amount was paid to the 1^st opposite party on 19.05.2012 and without any progress he was enjoying that amount. Having the opposite parties committed unfair trade practice and deficiency in service, it would be appropriate to direct them to pay a sum of Rs.2,00,000/- towards compensation for the same, besides a sum of Rs.5000/- towards litigation expenses.

In the result the complaint is partly allowed. The opposite party is ordered to refund a sum of Rs.8,56,215/- (Rupees Eight lakhs fifty six thousand two hundred and fifteen only)  towards the part amount due to the complainant with 12% interest from 20.05.2012 to till the date of this order and also to pay a sum of Rs.2,00,000/-(Rupees Two lakhs only)  towards compensation for unfair trade practice, deficiency in service and mental agony, besides a sum of Rs.5000/-(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 05^th day of December 2017.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated NIL                     Pamphlet issued by the 1^st opposite party

Ex.A2 dated 19.05.2012                   Receipt issued by the 2^nd opposite party

Ex.A3 dated 22.01.2014                   Endorsement made by the 1^st opposite party on the

                                                    Representation of the complainant

 

Ex.A4 dated 03.11.2014                   Return memo by the banker

 

Ex.A5 dated NIL                     Returned cheques

 

Ex.A6 dated NIL                     Plaint filed by the 1^st opposite party in O.S.No.922

                                                    of 2016

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES :

 

                                                ……. NIL …….

 

 

 

MEMBER – I                                                               PRESIDENT