State Consumer Disputes Redressal Commission
A.Sri Vanaja,Tirunelveli. vs K.Raja Gopal,Prop. K.R.Estate & ... on 24 March, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
F.A.No.148/2014
(Against the order made in C.C.No.80/2007 dated 09.09.2014 on the file of
the District Forum, Tirunelveli.)
THURSDAY, THE 24th DAY OF MARCH 2022
A.Sri Vanaja,
W/o M.Ashok,
No.2/8, Indira Nagar, Nannagaram,
Melagaram, Tenkasi - 627 818,
Tirunelveli District. Appellant/Complainant
-Vs-
K.Raja Gopal,
Prop.of K.R.Estate & Builders,
266, Railway Feeder Road,
Tenkasi - 627 811, Tirunelveli District. Respondent/Opposite Party
Counsel for the Appellant/Complainant : M/s.A.Hajamohideen, Advocate.
Counsel for Respondent/Opposite Party : Mr.T.S.R.Venkataraman, Advocate.
This appeal coming before us for final hearing on 09.03.2022 and on
hearing the arguments of both sides and on perusing the material records,
this Commission made the following:
ORDER
THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
1. This appeal has been filed by the appellant/complainant under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the learned District Forum, Tirunelveli made in C.C.No.80/2007, dated 09.09.2014, allowing the complaint.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputes Redresssal Forum, Tirunelveli.
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3. The complainant suffering by an order, directing the opposite party to refund the advance amount of Rs.20,000/- to the complainant and to pay a sum of Rs.10,000/- for the damages caused and to pay a sum of Rs.3000/- towards cost to the complainant in the hands of the learned District Consumer Disputes Redressal Forum, Tirunelveli (hereinafter referred to as District Forum), has preferred this appeal before this Commission.
4. The case of the complaint is as follows:- The complainant is working as Assistant Engineer in Tamil Nadu Electricity Board. Her husband is Engineering graduate and working in Shipping Company in abroad. They decided to purchase good house and searching for the same. They have one son who is studying 1st standard. They worked hard and saved little by little to purchase a good house for them. The opposite party is a real estate housing promoter. He approached the complainant through one Sri. Rajamanickam the co-worker of the complainant. The complainant and her husband were attracted by the compassionate words of the opposite party. The opposite party showed an attractive, colourful pamphlets under the heading ' YOUR DREAM COMES TRUE! YOUR DREAM HOME AT TENKASI & KUTRALAM'. He explained his various scheme to the complainant and her husband. He is running the business in the name and style 'K.R.Estates and Builders'. He said that he is vast experience in constructing houses. He developed many townships by purchasing land and constructing good houses and so many people are enjoying the same. Thus he influenced the complainant and her husband's mind and induced them to purchase the house site along with constructed house. He also promised to do necessary arrangement for availing loan from the nationalized bank for the construction of the house. Thus he explained his various features about his houses 3 with typed to A,B,C,D. The opposite party said that the purchaser has to pay the entire cost of the vacant land at the rate of Rs.35000/- per cent and get the sale deed registered. Thereafter he started the construction of houses with their choice and he will build a pucca house within a period of 3 months with proper specification by good quality of materials by availing loan from the national banks in the name of the complainant. Thus the opposite party lured the mind of the complainant and her husband and induced them to purchase the property from him. He also shows a sketch drawn in the name of Kalidasan Nagar to the total extent of 14 acre, 81.5 cents in Survey No: 28, 30, 40, 41, 86-92, 94, 61, 64, 77. The opposite party took the complainant and her husband to the said site called Kalidasan Nagar in Tenkasi and explained its various features that they leave enormous space for park, playground and other public utility and got approval from the Commissioner. Tenkasi Municipality, Tenkasi. Thus the opposite party by his compassionate words and assurance attracted the complainant and her husband and lured them to purchase the properties from him. The opposite party further told that he got necessary approval from the Commissioner, Tenkasi Municipality, for 4 sectors viz.,
1. nrf;lh; 1 k.gp.t/k(jp.yp.)vz;: 4/2005. 2. nrf;lh; 2 k.gp.t/t.(jp.yp.)vz;: 34/2005;> 3. nrf;lh; 3 k.gp.t/k(jp.yp.)vz;: 33/2005> 4. nrf;lh; 4 k.gp.t/k(jp.yp.)vz;: 32/2005. The complainant's husband approached the Tenkasi Municipality Commissioner and verified the correctness of the approval by them. They said that the opposite party applied for approval of the scheme. Immediately they asked the opposite party about the reply of the Tenkasi Municipality Commissioner. For which he replied that this project was sent to Chennai for further confirmation to the Director of Town Planning and he would definitely get approved plan since he complied all the 4 necessary things for approval. The complainant and her husband after go through the entire documents negotiate with the opposite party to fix a correct price. In the 1st week of May 2006 the opposite party gave a slip of paper Document No.2 quoting the cost of 1 cent of land is Rs.35,000/- and other information. Believing the sweet words and assurance, of the opposite party that he will provide defect free land and good quality of constructed house at a cheaper price. The complainant on 12-05-2006 paid Rs.10,000/- as advance amount by fixing the total cost of site and house as Rs.8,40,000/- is Sector IV P, Plot No.21 for type a house in Reg.No.62. The opposite party received Rs.10,000/- as advance in cash and by mentioning all the above details issued a Receipt No.029 in his own hand writing. As per the terms of the purchase after getting the approval in the Director of Town planning he has to execute the sale deed for the house site by receiving the balance sale price at th rate of Rs.35,000/- per cent. The total area is 4.80 cents for house and 0.80 cents for road). The complainant said that she is having sufficient funds to pay the cost of the land. The opposite party said that he will receive the balance price only at: the time of sale deed after receiving the approval order from the Director of Town Planning. The complainant in the next day again met the opposite party on 13-05-2006 paid Rs.10,000/- as advance amount by fixing the total cost of site and house as Rs.8,40,000/- in Sector IV O, Plot No.22 for type A house in Reg.No.63. The opposite party received Rs.10,000/- as advance in cash and by mentioning all the above details issued a Receipt No.030 in his own hand writing. As per the terms of the purchase after getting the approval in the Director of Town Planning he have to execute the sale deed for the house site by receiving the balance sale price at the rate of Rs.35,000/- per cent. The total area is 4.80 cent (4 cents for house and 0.80 5 cents for road). The complainant said that she is having sufficient funds to pay the cost of the land. This time also the opposite party said that he will receive the balance price only at the time of sale deed after receiving the approval order from the Director of Town Planning. The complainant believing the sweet words and assurance of the opposite party eagerly waited for his call for the registration of the document. She can avail the housing loan hassle free since she is a salaried person. In spite of repeated demands made by the complainant the opposite party evading and receive the balance sale price being the cost of the site for the 2 plots. Meanwhile now the complainant came to know that some of the consumers get the sale deed registered and started construction work. But the opposite party for the reasons known to him is evading and avoiding to register the sale deed and delaying. The opposite party has no right to evade and avoid to register the sale deed. The opposite party forced the complainant to run pillar to post to get the sale deed registered. The act of the opposite party is a clear deficiency in service. The complainant was put to untold mental agony, pain, sufferings etc., by the dodging acts of the opposite party. The complainant is always ready and willing to arrange sufficient funds to get the sale deed registered and commence the construction work by availing necessary loan from the nationalized bank with the help of the opposite party. In spite of repeated negotiation through the well wishers the opposite party refused to turn down to come forward to receive the balance price and start the work. Due to the unwanted delay of the opposite party from 12-05-2006 to till now for more than 16 months the complainant was forced to suffer a lot. The cost of the building materials are increasing day-by-day. The opposite party forced the complainant to suffer and give unnecessary burden because of increase in price. 6 The delay of several months by the opposite party is a clear deficiency in service. The complainant has no words to explain her pain and sufferings. The opposite party bombards the peace of mind of the complainant. The opposite party's delaying acts gave irreparable mental agony to the complainant. In spite of repeated damage made by the complainant and by her well wishers the opposite party is evading and avoiding to keep up his promise. They apprehend that their dream house may be vanished by the cheating acts of the opposite party. The opposite party wantonly, willfully and motivate committed great injustice on the complainant and her husband. The opposite party has deliberately committed deficiency in service under the banner of K.R.Estates & Builders by showing attractive pamphlets, sketch etc., The opposite party has no valid justification to evade and avoid to confirm the said allotment. Moreover now the complainant learns that the opposite party is taking emergent steps to allot the plots given to the complainant to some 3 rd parties for higher price. He has no right to do so. He has to be restrained by an interim order as not to transfer the plots already allotted to the complainant to any 3rd parties. The opposite party is held liable to pay compensation to the complainant at the rate of Rs.10,000/- per month from June 2006 to till date of registering the sale deed . The act of the opposite party is Unfair Trade Practice also. The opposite party has to register the sale deed for Plot No.21 and 22 immediately without any moment of delay or in alternative to refund the advance amount with interest at the rate of 24% per annum if the said plot was sold to any 3rd parties by the opposite parties before filing of this complaint. In such case the opposite party is also held liable to pay punitive damages also to the complainant apart from the compensation as decide by this Forum. The acts of the opposite party are against Law and 7 Principles of Natural Justice, Hence the complaint is filed before this Forum for necessary reliefs. The cause of action for the complaint arose on 12-05-2006 and 13-05-2006 when the opposite party accept the booking of plots by receiving and advance amount and issued receipts promised to register the sale deed at the earliest; On subsequent dates in spite of repeated demands made by the complainant the opposite party is evading and avoiding to keep up his promise; On several dates the complainant is always ready and willing to pay the balance amount for registration of the sale deed; On several dates when the opposite party has committed deficiency in service and gave irreparable mental agony to the complainant; and at Tenkasi town where the opposite party is having his office which are within the jurisdiction of this Forum. Therefore it is prayed that this Forum may pleased to pass orders directing the opposite party to register the sale deed for Plot No.21 and 22 Sector IV P for A type house in Kalidasan Nagar, Tenkasi town at the agreed rate and do the needful for the construction of the house within the stipulated time ordered by this Forum or an alternative to refund the advance amount of Rs.20,000/- with interest at the rate of 24 % from 13-05-2006 to till date of payment if the circumstance warranted, directing the opposite party to pay compensation of Rs.10,000/- per month from June 2006 to till date of registration of sale deed or refund of advance amount and directing the opposite party to pay punitive damages as fixed by this Forum if the circumstances warranted award the cost of Rs.5000/- and grant such other reliefs.
5. Written version filed the opposite party is as follows:- The complaint filed by the complainant is not valid, maintainable in law or on facts and is to be dismissed in limine. The complainant is put to strict proof of the various allegation 8 in Para 1 of the complaint. This opposite party denies the various allegation in Para 2 of the complaint as false and incorrect. The allegation that this opposite party approached the complainant through Rajamanickam and the complainant and her husband were attracted by this opposite party and this opposite party influenced the complainant and induced them to purchase the house site along with constructed house are all false and incorrect. This opposite party humbly submits that he is not known to the alleged Rajamanickam. This opposite party stands under and believes the same to be true that the said Rajamanikam is a co-worker of this complainant and being introduced in this complaint to give false evidence against this opposite party. This opposite party humbly submits that this opposite party is a self employed person and a reputed respected real estate promoter and builder in Tenkasi. And he never approached the buyers including the complainant for buying sites and houses. In fact, the complainant approached the opposite party only through one Mariappan. This opposite party admits the averments that this opposite party has a colorful pamphlets and give it to every visitor. The praise worthy words in the pamphlet about this opposite party are true except the allegations in the complaint that this opposite party induced and influenced the complainant and her husband to buy a house. On having satisfied with the facts stated in the pamphlet and on visiting physically the site and relevant documents and records, the complainant paid and ordered for site and house. This opposite party denies the various allegations in Para 3 of the complaint as false and incorrect. The allegations and this opposite party will built a pucca house in 3 months and injured the minds of the complainant and her husband and induced them to purchase the property from the opposite party are all false and incorrect. This opposite party humbly submits 9 that he has been developing Kalidasan Nagar in Tenkasi in an area having a total extent of 14 acres 81 ½ cents. The plots are being sold on getting proper approval by the Town Planning and Municipal Authorities. The contra all in the complaint are false and incorrect. This opposite party also admits the facts that the price demanded was Rs.35,000/- per cent and a good quality of construction was also assured to the complainant. The complainant wanted two sets of 4.6 cents land site and built up area of 1282 square feet each totaling Rs.8,40,000/- per house . This opposite party accepted the proposal and received Rs.10,000/- each towards booking of 2 houses along with the site on 12-5-2006 and 13-5-2006 respectively, obviously the alleged influence and inducement cannot extend to the complainant for 2 days that a house booked on 12th went back home and other house being booked on 13th by the complainant. This opposite party denies the various allegations Para 4 of the complaint as false and incorrect. The allegations that this opposite party applied for approval of the scheme and that the project was sent to Chennai for confirmation of the Director of Town Planning are all false and incorrect. This opposite party humbly submits that the Deputy Director of Town Planning approved the scheme and lay out as early as 09-10-2005 that is five months prior to the booking of site and house made by the complainant and the booking was done by the complainant after perusing the approval of lay out by the Deputy Director of Town and country planning. This opposite party denies the various allegations in para 6 of the complaint as false and incorrect excepting the fact that the price for the site demanded by this opposite party and accepted to by the complainant was Rs.35,000/- per cent and total cost for site and house was Rs.8,40,000/- each, and that the opposite party received a sum of Rs.10,000/- towards booking charge in 10 cash and receipt No.29 was issued on 12-05-2006 and receipt No.30 was issued on 13-05-2006, on receipt of the said booking charge amount of Rs.10,000/-.The allegation that there were terms of purchase stating the sale to be executed after getting the approval from the Director of Town Planning is an absolute falsehood. On the date of acceptance and booking by the complainant for plot No.21 and 22 this opposite party has been granted approval by Deputy Director of the Town planning. The contra allegations are absolute falsehood. The allegation that the complainant was having sufficient funds to pay a cost of the land and that this opposite party said that he would receive the balance price only at the time of sale deed after receiving the approval from the Director of Town Planning are all absolute false hood and deliberately made for the purpose of this complaint. In fact, this complainant had no sufficient means to buy the site and the house as agreed by her. This opposite party humbly submits that the complainant has to pay Rs.1,25,000/- as advance within 3 months from the date of booking of the site towards each plot and she should arrange for bank loan for completion of sale deed and construction of house. Having indented to buy 2 plot and houses the complainant had to pay Rs.2 ½ lakhs within 3 month of her booking that is before 13-08-2006 and she never did it as agreed. This complainant did not turn up in spite of repeated reminder made to her through Mariappan to pay the said amount of Rs.2 ½ lakhs and it is evident that she had no sufficient money to pay. Having failed to pay the advance amount of Rs.2 ½ lakhs within 13-8-2006 the booking was automatically cancelled and there is no contract of sale in existence. This opposite party also denies the various allegations in Para 7 of the complaint as false and in correct the allegation that the complainant believed the words and assurance of the opposite 11 party eagerly waited for his call for registration of documents and that she can avail housing loán haste free and that in spite of he repeated demands the opposite party is evading and avoiding to receive the balance sale price are all false and incorrect. This opposite party humbly submits that this complainant being an employee in Tamil Nadu Electricity Board has to get no on objection certificate from her employer and apparently she could not get permission from her employer for purchasing this property. Apart from that the complainant has to fulfill the eligibility criteria for getting the loan from the Bank and merely a salaried person is not an accepted criteria for obtaining for a Bank loan. This opposite party denies the various allegations in Para 8 of the complaint as false and incorrect. Had the complainant put to untold mental agony, pains and sufferings it was her own buying. The allegations that the complainant was always ready and willing to arrange sufficient funds to get the sale deed register and commence the construction work by availing necessary loan from the Nationalized Bank with the help of the opposite party are all false and incorrect. The further allegations that the repeated negotiations through well wishers and this opposite party refused to receive the balance price are all false and incorrect. The opposite party humbly submits that time is the essence of the contract and the complainant ought to have paid a sum of Rs.1,25,000/- within 3 months from the date of booking of the plots towards each plot. Having not completed with, she lost her claim. All other contra allegations in Para 8 of the complaint are false and being denied by this opposite party. This opposite party denies the various allegations in Para 9 and 10 of the complaint as false and incorrect. There was no delaying tactics as alleged by the complainant. Having completed more than 85 houses in Kalidasan Nagar, by this opposite party speaks 12 volume of his ability and reputation and the complainant is not entitled to any compensation as alleged and any relief sought for by the complainant. This opposite party humbly submits that he issued a letter dated 19-06-2007 addressed to the complainant stating all the above facts that since the complainant party has not paid the balance amount within 3 months her registration is being cancelled and the advance amount of Rs.20,000/- is returned through his Banker's check bearing No.787160 and 787161 of State Bank of India, Tenkasi dated 19-07-2007 and the same has been received by the complainant. The complainant has also sent reply dated 25-08-2007 through her advocate stating all sort of false and frivolous allegations and along with her reply notice she has returned the cheques issued by the opposite party. This opposite party humbly submits that this Forum cannot order for a specific performance of contract of a sale. That is ordering to register the sale deed in favor of the complainant. This opposite party further humbly submits that this Forum is being misused by the complainant to avoid the reliefs to be sought for before the Civil Court by paying a Court fee of Rs.15 lakhs for the total value of Rs.20 lakhs. Hence, this Forum has no jurisdiction to decide the point in issue involved in this case. This opposite party humbly submits that this Forum has no jurisdiction to try this complaint. The complainant has no cause of action to file this complaint and the cause of action alleged is false and incorrect. The alternative relief sought for is only a self serving and the complainant is not entitled to any relief especially from this Forum.
6. The Leaned District Forum, after taking into account of the evidences adduced by both parties, allowed the complaint had held that the opposite party has received the advance amounts from the complainant as booking charges to reserve 13 house site of the opposite party. Since the complainant has not paid the balance amount within three months complainant‟s registration is being cancelled and the advanced amount of Rs.20,000/- is returned through cheques dated 19.07.2007 and the same has been received by the complainant. The complainant sent reply on 25.08.2007 and along with the cheque issued by the opposite party and also held that time is the essence of the contract the Forum has no power to order for specific performance of contract though there is no deficiency of service on the part of the opposite party, it is his bounden duty to repay amount received from the complainant with reasonable interest since the amount paid by the complainant is in the hands of opposite party and directing the opposite party to refund the advance amount of Rs.20,000/- to the complainant and to pay a sum of Rs.10,000/- for the damages caused and to pay a sum of Rs.3000/- towards cost to the complainant.
7. Aggrieved against that order the opposite parties challenged it by filing this appeal stating that the learned District Forum in its order in para 8 of the order held that the opposite party is liable to return back the amount with reasonable interest but in contra in para 9 it has ordered the refund of the advance amount alone and erroneously held that there is no deficiency in service on the part of the opposite party, once the deficiency in service was proved as decided in favour of the complainant then the District Forum ought to have granted the entire relief as prayed for. The District Forum failed to see that it is not a simple civil transaction of sale agreement where in the relief is available under the Specific Relief Act. Therefore to grant enhanced compensation as prayed in the complaint in this appeal.
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8. No additional evidences were adduced by both parties in this appeal before this Commission.
9. The Points for consideration are;-
(1) Whether there is any deficiency in service on the part of the opposite party?
(2) Whether the order passed by the Learned District Forum is sustainable under law or not?
(3) To what relief the complainant is entitled for?
10. Point no.1: The complainant is working as Assistant Engineer in Tamil Nadu Electricity Board decided to purchase house sites and she approached the opposite party through a co-worker by name Sri.Rajamanickam. The complainant and her husband induced by the opposite party for purchasing the house site along with constructed house by promising to do necessary arrangement for availability of loan from the Nationalized bank for the construction of house and also explained various types about the houses A,B,C,D. The opposite party took the complainant and her husband to the sites called Kalidasan Nagar, Tenkasi and explains its various features. The opposite party further told that he got necessary approval from the Commissioner, Tenkasi Municipality for four sectors. The complainant‟s husband approached the Tenkasi Municipality Commissioner and verify the correctness of the approval by them. The Tenkasi Municipality Commissioner sent reply that the project was sent to Chennai for further confirmation to the Director of Town Planning. The complainant with her husband negotiated with the opposite party to fix cost of the land on 1st week of May 2006. The opposite party gave a slip paper by quoting cost 15 of one cent of land is Rs.35,000/- and other information. On 12.05.2006 the complainant paid Rs.10,000/-as advance amount by fixing the total cost of site and house is Rs.8,40,000/- in IV P, Plot No.21 for type A house in Registration No.62. The opposite party issued mentioning all the above details the Receipt No.029 in his own handwriting. Next day the complainant again met the opposite party on 13.05.2006 paid Rs.10,000/- as a advance amount for another house site in same type A Plot No.22 in the same sector the opposite party also issued another Receipt No.030 by receiving Rs.10,000/- as advance mentioning the details in his own hand writing.
11. The complainant is ready and willing to purchase the house site with constructed houses by paying the balance amount as per the agreement between them. Inspite of repeated demands made by the complainant the opposite party avoid to receive the balance sale price and the complainant came to know that some of the purchasers get the sale deed registered and started construction work. The opposite party refused to turn down to come forward to receive balance price and start the work. The opposite party has no valid justification to evade and avoid to confirm the said allotment. Now, the complainant learns that the opposite party is taking emergent steps to allot the plots given to some 3rd parties for higher price the opposite party has no right to do so, the complainant prayed for relief against the opposite party as prayed in her complaint.
12. The Learned District Forum had held that the below has no power for specific performance of contract. The complainant was not able to establish her readiness and willingness to pay the entire balance amount for the execution of sale deed 16 within the period of three month as agreed and there is no deficiency in service on the part of the opposite party. Even though the Learned District Forum held as above in favour of the opposite party to be pass an order without giving any reasons against the above discussions in its own order directing the opposite party to return the advance amount with damages and costs.
13. The counsel for the appellant would contend that the findings of the Learned District Forum is not correct since it is not a simple civil transactions of sale agreement wherein the relief is available under the Specific Relief Act for supporting his contention he produced the citation reported in - 2012 (3) CTJ 668 (SC) - in the case of Narne Construction Private Limited etc.,etc., -Vs- Union of India and others etc., The Hon‟ble Supreme Court held in "when a person applies for allotment of building site or for a flat constructed by Development Authority and enters into an agreement with the developer or a contractor, the nature of the transaction is covered by the expression „service‟ of any description. The housing construction or building activity carried on by a private or statutory body was, therefore, held to be „service‟ within the meaning of Clause (o) of Section 2 (1) of the Act as it stood prior to the inclusion of the expression „housing construction‟ in the definition of „service‟ by Ordinance No.24/1993. In the light of the above judgement of Hon‟ble Supreme Court held the activities of carrying out, development activities in a property is „service‟ within the purview of Consumer Protection Act. The above citation is squarely applicable for the present appeal. Therefore, the finding of the learned District Forum is not correct.
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14. The next contention raised by the counsel for the appellant is when the opposite party has received the advance amount from the complainant they are duty bound to call the complainant for the execution of sale deed within the stipulated period.
15. The counsel for the respondent/opposite party would contend that if the complainant has the money to buy the property she should have tendered money got the sale deeds. Mere allegations of "I am ready and willing to buy the houses"
will not cut ice in any court and also as an employer working in Tamil Nadu Electricity Board she cannot buy even a house as she is bound by her Code of Conduct Rules of Tamil Nadu Electricity Board. She did not get NOC, she never came back to buy the houses. The booking amount is only is an offer by the complainant and as she has not tendered the cost of the land and building to the opposite party. There is no concluded contract in the strict sense of Law. The opposite party obtained permission from the Director of Town Planning as on the date of booking on 09.12.2005.
16. It is the admitted case of both parties the complainant approached the opposite party for purchasing house sites and constructed house on paying a sum of Rs.10,000/-. As per the case of the opposite party it is not an advance but it is only a booking amount and it is an offer the complainant produced a xerox copy of documents supplied to her by the opposite party during their discussion for the transactions. In the first document Ex.A1 nowhere stated the period of payment and also nowhere stated as the amount was received as booking amount. Therefore, the contention raised by the respondent/opposite party not found in their own document 18 Ex.A1 and Ex.A2. The amount was fixed Rs.35,000/- per cent with house the cost fixed as Rs.8,04,000/- for plot No.19 & 20 the amount fixed by the opposite party is Rs.11,30,000/- no date of preparation was mentioned in the above document we can presume only it is prepared during the time of discussion between the parties. It is the admitted case of both parties would go to show that both parties are orally agreed for such terms for the purchasing of a house site and construct a house. No document is produce by either party their agreement, the period fixed by them for the payment and execution of the sale deed. Even though time is not essence of contract with regard to the immovable property the party should be ready and willing to perform their respective obligations within reasonable time of the agreement. The complainant files Ex.A3 and Ex.A4 which are the documents also not denied by the opposite party and it was furnished with xerox copy and signed by the opposite party. As per the case of the complainant both the documents were printed and issued by the opposite party in his own handwriting for the payment of Rs.10000+10000 as receipts issued in the name of the complainant. It was issued on 12.05.2006 and 13.05.2006 it proves payment paid by the complainant with the opposite party.
17. In the above documents Ex.A3 & A4 receipts the amount received by the opposite party only as advance amount. Both the documents disprove the claim of the opposite party that the amount received only as a booking amount. Ex.A5 & A6 mentioned the facilities assured by the opposite party both the documents were also not denied by the opposite party. Ex.A6 is the xerox copy of plan of the house sites and building.
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18. The opposite party not ready to receive the balance amount as agreed by him from the complainant. The term for payment was no where stated in any of the document but, the opposite party raised contention that the time limit fixed by them for the payment is three month. When the opposite party raised such plea it is the duty to prove they are agreed for the period for payment and execution of sale deed. The opposite party has not produced any of the documents to prove their contention the period for payment. Therefore, the contention raised by the opposite party is not maintainable both the parties are agreed only for the payment and allotment and registration of sale deed. They have not executed any written agreement their agreement are seems to be in oral. The opposite party is tried to establish the oral agreement examined some witnesses before the District Forum.
19. Even though the witnesses have stated before the Learned District Forum the procedure adopt by the opposite party for the dealings with the purchasers the unwritten terms for the period of payment. The amount only received as registration charge on failure of balance amount the registration would be cancelled automatically are all unreliable terms those terms are seems to be developed by the opposite party for supporting his case.
20. After paying the advance amount of Rs.10000+10000 the complainant on two dates under Ex.A3 & A4 on 12.05.2006 and 13.05.2006 and issued pre suit notice on 19.07.2007. The opposite party claimed the period for payment is only three months as per his case the agreement was automatically cancelled on 11.08.2006. In the absence of any written document for the period for payment the conditional term are not admissible. The pre suit notice it was issued only after nearly one year 20 during the period of one year the complainant is said to be ready and willing to purchase the property by paying the balance amount.
21. The counsel for the respondent/opposite party raised a contention that to prove readiness and willingness the complainant not produced any document to prove the availability of cash in her hand and no objection obtained from her higher authorities. The complainant orally informed her readiness and willingness but, the opposite party kept quite for the period of one year. As per the case of the complainant the opposite party alone evades the receipt of balance amount and execution of document and also trying to sell the allotted site to some other third parties. Now, it is the duty of the opposite party to prove on which date, which place he called for the complainant to the register office with the balance amount for the execution of sale deed. No such steps was taken by the opposite party would clearly proves he violates the agreed term. As per the above discussion when the opposite party entered into an agreement with the complainant the nature of transactions is covered under the expression of „service‟ within the meaning of 2 (1) (o) of Consumer Protection Act 1986. When the opposite party either delayed or evades to receive the balance amount and not ready to execute the sale deed and not perform on their part it amounts to deficiency in service.
22. In the complaint filed by the complainant primarily challenged the action of opposite party to refund the amounts deposited by her and thereby expensed their entitlement to get the plots. She cannot deprive her legitimate rights to seek remedy under the Consumer Protection Act, it was settled in Thirumurugan Co-operative Agricultural Credit Society -Vs- M.Lalitha (2004) 1 SCC 305. Therefore the opposite 21 party committed deficiency in service and answered accordingly for the point for consideration no.1.
23. Point no.2: The Learned District Forum confused itself by holding the opposite party had not committed any deficiency in service at the same time directing them to refund the amount as claimed by the complainant without interest. When the complainant case is specifically alleged the non performance of the opposite party as per the agreement entered between them. The Learned District Forum ought to have to dismiss the complaint now it was discussed in point no.1 elaborately the opposite party committed deficiency in service. Therefore, the order of Learned District Forum is not sustainable under law and it requires interference in this appeal and answered accordingly for the point for consideration no.2.
24. Point no.3: The complainant claimed directing the opposite party to construct the house at the agreed rate within the stipulated time or alternatively to refund the advance amount of Rs.20,000/- with interest at the rate of 24% from 13.05.2006 to till date of payment. If the circumstances wanton and also claimed Rs.10,000/- per month as compensation from the month of June 2006 till the date of registration of sale deed and to refund of advance and cost of Rs.5000/-. While quantifying damages, consumer Forums are required make an attempt to serve ends of justice so that compensation is awarded in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While 22 awarding compensation, a Consumer Forum has take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case.
25. The complainant is a Government servant working in Tamil Nadu Electricity Board as Assistant Engineer now, she may be promoted to higher stage her husband is also said to be working in abroad, it shows the status of their family. In the complaint, the complainant stated they have to plan to construct their dream house for their own occupation as well as to their son‟s studied the above needs are bonafide one. At the same time the complainant entered into an agreement with the opposite party in the year 2006. Now, sixteen years were lapsed she is entitled for refund of the advance amount paid by her for the allotment of the house sites only with admissible rate of interest. After lapsing of sixteen years it is not possible for the opposite party to register a sale deed in favour of the complainant. It was not clarified whether the plots are available for the execution of sale deed in favour of the complainant. In such circumstances fixing of interest at the rate of 9% per annum for the advance amount from the date of filing the complaint (i.e.) 24.08.2007 till its realization would meets the ends of justice.
26. The counsel for the complainant claimed compensation by relying upon the citation I (2013) CPJ 122 (NC)- National Consumer Disputes Redressal Commission - in the case of Indiana Audio Equipment & Another -Vs- Raj Wadhawan & Others in which Rs.50,000/- fixed as lump sum compensation. Therefore, the amount fixed to be in this appeal would meets the ends of justice. Therefore, the complainant is eligible for getting Rs.50,000/- as lump sum amount of compensation. 23
27. The counsel for the respondent/opposite party produced some citation which are irrelevant to the appeal on hand the order passed by the Madurai Bench of Madras High Court in H.C.P.(MD) No.259/2020 dated 22.11.2021.
28. Therefore, the complainant is entitled to refund of the amount of Rs.20,000/- with interest at the rate of 9% from the date of complaint till its realization and also Rs.50,000/- as lump sum compensation and answered accordingly for the point for consideration no.3.
29. In the result, the appeal is allowed by setting aside the order of the learned District Consumer Disputes Redressal Forum, Tirunelveli made in C.C.No.80/2007, dated 09.09.2014, and the opposite party is directed,
(a) to refund the advance amount of Rs.20,000/- with interest at the rate of 9% per annum from the date of filing the complaint (i.e.) 24.08.2007 till its realization and,
(b) to pay a sum of Rs.50,000/- as lump sum compensation for mental agony and also,
(c) to pay a sum of Rs.5000/- as cost to the complainant in the appeal.
Time for compliance: Two months from the date of receipt of copy of this order, failing which, the award amount of the above (a) column, shall carry interest at the rate of 12% per annum from the date of receipt of copy of this order till its realization.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 24th day of March 2022.
Sd/-xxxxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
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