Tamil Nadu

South Chennai

CC/123/2017

Deepak Julien - Complainant(s)

Versus

M/s.Sare Reality Project Pvt Ltd - Opp.Party(s)

Party in Person

05 Mar 2020

ORDER

                                                                             Date of filing      : 26.04.2017

                                                                               Date of disposal : 05.03.2020

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

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

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.123/2017

DATED THIS THURSDAY THE 05^TH DAY OF MARCH 2020

                                 

1. Deepak Julien,

S/o. Mr. A. Amalraj,

 

2. Anita Carvalho,

W/o. Mr. Deepak Julien,

Both are residing at:-

No.7, Heritage Vijayendra Nagar Phase 1,

VPK Street,

Perungudi,

Chennai – 600 096.                                                                                                                                                                  .. Complainants.                        

..Versus..

1. M/s. Sare Reality Projects Pvt. Ltd.,

Represented through its Director

Mr. Nalin Aggarwal,

Registered Office at:-

C-97, Ground Floor, DDA Flats,

East of Kailash,

New Delhi – 110 065.

 

2. M/s. Sare Jubilee Shelters Pvt. Ltd.,

Represented through its GM–Legal

Mr. Saravanan,

Sales Office at:-

First Floor SKCL Icon C-42 & C-43,

CIPET Road,

Thiru-Vi-Ka Industrial Estate,

Guindy,

Chennai – 600 032.                                                                                                                                                              ..  Opposite parties.

Counsel for the complainants      : M/s. Shivesh Kumar Sinha

Counsel for the opposite parties : Ms. R. Dhanalakshmi

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainants against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to refund a sum of Rs.10,94,816/- with interests at the rate of 24% p.a., to pay a sum of Rs.2,69,500/- in total with accrual of statutory interests over it on account aforesaid incurred loss by way of paid house rents, till now and Rs.14,000/- per month with proportionate interests till payment is made and to pay a sum of Rs.5,00,000/- towards compensation for harassments, agonies etc with cost to the complainants.

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

The complainants submit that the opposite parties are the Builders and developers launched a scheme for development of Expandable Villas in the project named ‘Meadow Ville’.   The complainants entered into an Agreement dated:17.06.2014 and paid a sum of Rs.10,94,816/- the scheduled 20% of the total cost of said Villa.   The complainants submit that the total cost of Villa is Rs.58,19,000/- at the time of execution of Agreement as per the Agreement dated:17.06.2014.   The complainants are entitled to 1,741 sq. ft of flat with undivided share of land measuring 1,500 sq ft.   The complainants submit that as per the Agreement, construction shall be completed on or before 31.12.2014 and the grace period of 6 months from the granting of delivery of possession. The complainants submit that he visited the project on 12.05.2016 and observed that ‘No trace of construction work on the plot’.  Hence, the complainants issued notice dated:05.03.2016 for cancellation of agreement and claiming of refund of the advance amount of Rs.10,94,816/- and rental expenses of Rs.2,69,500/- at the rate of Rs.14,500/- per month as per the agreement.  The opposite party has not come forward to settle the demands of the complainants.   The act of the opposite parties amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

2.      The brief averments in the written version filed by opposite parties is as follows:

The opposite parties specifically deny each and every allegations made in the complaint and put the complainants to strict proof of the same.   The opposite parties state that admittedly, the complainants entered into an agreement on 17.06.2014 with the 1^st  opposite party for the purchase of Villa Type F, Villa No.F32-02 with a saleable area of 1,741 sq. ft. with undivided share of land measuring 1,500 sq. ft.  As per the terms of agreement, the complainants have to pay a total consideration of Rs.58,19,000/-  along with applicable taxes, charges etc.  The complainants had paid only Rs.10,94,816/-.  The balance amount shall be paid in 9 instalments in accordance with the payment schedule.  Therefore, the complainants are defaulters in payment of instalments.  The opposite parties state that due Force Majeure Events and subject to the building work not being delayed or suspended due to unexpected or unavoidable circumstances’ as per clause 6(1) of the agreement.  The opposite parties states that the claiming of Rs. 2,69,500/- being the loss incurred by way of paid house rent at the rate of Rs.14,000/- per month cannot be claimed without any evidence.  Therefore, there is no deficiency in service on the part of the opposite parties and hence, the complaint is liable to be dismissed.

3.     To prove the averments in the complaint, the complainants 1 & 2 have filed proof affidavit as his evidence and documents Ex.A1 to Ex.A6 are marked.  Proof affidavit of the opposite parties 1 & 2 is filed and documents Ex.B1 to Ex.B5 are marked on the side of the opposite parties 1 & 2.

4.      The points for consideration is:-

1. Whether the complainants are entitled to get refund of a sum of Rs.10,94,816/- with interest at the rate of 24% p.a. as prayed for?
2. Whether the complainants are entitled to a sum of Rs.2,69,500/- towards house rent in total (Rs.14,000/- per month) with interest as prayed for?
3. Whether the complainants are entitled to a sum of Rs.5,00,000/- towards compensation for deficiency in service, mental agony and unfair trade practice with as cost as prayed for?

 

 

5.      On point:-

The opposite parties filed their written arguments .   Heard both sides Counsels.   Perused the records namely; the complaint, written version, proof affidavits and documents.  The complainants pleaded and contended that the opposite parties are the Builders and developers launched a scheme for development of Expandable Villas in the project named ‘Meadow Ville’.   The complainants entered into an Agreement dated:17.06.2014 as per Ex.A1 and paid a sum of Rs.10,94,816/- the scheduled 20% of the total cost of said Villa as per Ex.A3.   Further the contention of the complainants is that the total cost of Villa is Rs.58,19,000/- at the time of execution of Agreement as per ANNEXURE-1 of the Agreement Ex.A1(S) dated:17.06.2014.   The complainants are entitled to 1,741 sq. ft of flat with undivided share of land measuring 1,500 sq ft.   Ex.A2 is the brochure showing the details of amenities etc.   Further the contention of the complainants is that as per Ex.A1, Agreement the construction shall be completed on or before 31.12.2014 and the grace period of 6 months for  delivery of possession.   But the opposite parties has not whispered anything about the construction.   Hence, the complainants visited the project on 12.05.2016 and observed that ‘No trace of construction work on the plot’.  Hence, the complainants were constrained to issue notice dated:05.03.2016 as per Ex.A5 for cancellation of agreement and claiming of refund of the advance amount of Rs.10,94,816/- and rental expenses of Rs.2,69,500/- at the rate of Rs.14,500/- per month as per the agreement.  Since, the opposite parties has not started any construction and one way or the other delayed the construction stating that shortage of materials and other things shall not be considered and which amounts to deficiency in service.  

6.     The learned Counsel for the opposite parties would contend that admittedly, the complainants entered into an agreement on 17.06.2014 with the 1^st  opposite party for the purchase of Villa Type F, Villa No.F32-02 with a saleable area of 1,741 sq. ft. with undivided share of land measuring 1,500 sq. ft.   Ex.B2 is the copy of Sale and Construction Agreement.   As per the terms of agreement, the complainants has to pay a total consideration of Rs.58,19,000/-  along with applicable taxes, charges etc.  The complainants has paid only Rs.10,94,816/-.   The balance amount shall be paid in 9 instalments in accordance with the payment schedule.   Thereby, the complainants are defaulters in payment of instalments.  But as per the brochure, the complainants are claiming payment of 20% alone till the delivery of possession is denied by the opposite parties and the same is not entitled by the complainants.  Further the contention of the  opposite parties is that the complainant had misconstrued the brochure, Ex.A2 wherein, the said scheme is only applicable to those eligible buyers who get sanctioned loan from ICICI or HDFC bank.  But not for others.   But it is very clear from the records including photographs that the opposite party has not started any construction even after the lapse of more than one year Ex.A4.   Ex.A3 is the copy of statement of accounts regarding the payment made to the opposite party and Ex.A5 is the copy of cancellation letter dated:05.03.2016

7.     Further the contention of the opposite parties is that due Force Majeure Events and subject to the building work not being delayed or suspended due to unexpected or unavoidable circumstances’ as per clause 6(1) of the agreement.   But the law is well settled that such Force Majeure Events cannot be considered in consumer cases against the builders and also not at all started the construction work after receiving payment of 20% of total sale consideration proves the deficiency in service.  Further the contention of the opposite parties is that the claiming of Rs. 2,69,500/- being the loss incurred by way of paid house rent at the rate of Rs.14,000/- per month cannot be claimed without any iota of evidence.  Similarly, the compensation claimed is exorbitant.  Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite parties 1 & 2 shall refund a sum of Rs.10,94,816/- with interest at the rate of 9% p.a. from the date of complaint to pay a sum of Rs.1,00,000/- towards compensation for mental agony with cost of Rs.10,000/- to the complainants.

In the result, this complaint is allowed in part.  The opposite parties 1 & 2 are jointly and severally liable to refund a sum of Rs.10,94,816/- (Rupees Ten lakhs ninety four thousand eight hundred and sixteen only) being amount paid for booking the flat with interest at the rate of 9% p.a. from the date of filing of the complaint (i.e.) 26.04.2017 to till the date of this order (i.e.) 05.03.2020 and to pay a sum of Rs.1,00,000/- (Rupees One lakh only) towards compensation for mental agony with cost of Rs.10,000/- (Rupees Ten thousand only) to the complainants.

The above amounts 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 Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 05^th day  March 2020. 

 

MEMBER                                                                                PRESIDENT

COMPLAINANTS’ SIDE DOCUMENTS:-

Ex.A1	17.06.2014	Copy of Agreement between the complainant and opposite party
Ex.A2		Copy of brochure
Ex.A3	27.09.2016	Copy of account statement
Ex.A4		Copy of photograph of the impugned site
Ex.A5	05.03.2016	Copy of letter of the complainant to the opposite party regarding requisition of cancellation of agreement
Ex.A6		True copy of rejoinder cum evidence on affidavit cum note of arguments by the complainants u/s 13(4) (iii) of the Consumer Protection Act, 1986

OPPOSITE PARTY SIDE DOCUMENTS:-  

Ex.B1		Copy of application form
Ex.B2	17.06.2014	Copy of Sale and Construction Agreement
Ex.B3	11.11.2013	Copy of receipt for Rs.50,000/- dated:11.11.2013
Ex.B4	11.11.2013	Copy of receipt for Rs.5,00,000/- dated:11.11.2013
Ex.B5	11.04.2014	Copy of receipt for Rs.5,44,816/- dated:11.04.2014

 

 

 

MEMBER                                                                                                                                                                                            PRESIDENT