This appeal has been filed by the appellant against the order dated 4.6.2014 passed by the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (in short, ‘the State Commission’) in OP No. 29/2012 – M. Jayachandran Vs. M/s. Vathithi Holdings Pvt. Ltd. by which, complaint was allowed.
2. Brief facts of the case are that Complainant/Respondent entered into an agreement for the purchase of a villa No.38 at Renga Greenlands Villa Project, Nehru Nagar, Kalapatti, Coimbatore measuring 2050 sq.ft with super built up area of 2600 sq.ft by entering into agreement for sale and purchase which was executed on 25.03.2010 and to hand over the possession on 31.12.2010 for the cost of Rs.76,50,000/- for which the complainant paid Rs.10,00,000/- by way of cash and for the remaining amount of Rs.66,50,000/-, the agreement was entered and made the balance amount on various dates including payment transferred from Sri Renga Properties through whom the transactions was entertained totaling the complainant paid Rs.70,45,000/- and remaining balance amount of Rs.6,05,000/- was to be paid at the time of possession of the villa. In pursuance of the agreement the sale deed was executed on 3.5.2010 for the land having market value for Rs.5,13,500/-. The complainant availed housing loan of Rs.37,24,629/- from the IDBI Bank of Coimbatore and disbursed Rs.30,70,000/- towards the loan directly given to the opposite party/appellant. The villa and the entire project were not completed in all aspects the complainant pointed out nearly 23 items of work to be completed as mentioned in the complaint in para-9. The Renga Property Developers Pvt.Ltd availed project loan from the Oriental Bank of Commerce by mortgaging the property come under the purchase of the complainant land also and issued No Objection Certificate to the opposite party in order to settle the loan of Renga Property and thereby if the opposite party failed to settle the loan transaction of Renga Developers the complainant has to pay another sum of Rs.66,60,000/- to the Oriental Bank of Commerce to discharge the mortgage loan. Since the opposite party agreed to hand over the villa on 31.12.2010 already there was a delay of one year 3 months and nobody knows when the project will be completed and thereby the complainant is unnecessarily paying rent and incurred heavy loss and paying monthly EMI. Alleging deficiency on the part of OP, complainant filed complaint before State Commission.
3. Opposite party denying the allegations of the complainant in their written version contended that State Commission having no jurisdiction to entertain the complaint since any recovery of money on the basis of agreement has to be filed only before the Civil Court and the complainant is the close relative of the Chairman of Sri Renga Properties and at their request his deposit of Rs.7.75 lakhs with Mr.Rajahram in order to purchase an apartment in their property, after negotiation with the opposite party, the complainant entered into an agreement for the sale and purchase agreement on 25.3.2010 with the opposite party M/s. Vaithi Holdings Private Ltd. to purchase the property villa No.38 for the sale consideration of Rs.66,50,000/- and the complainant paid Rs.2,00,000/- and agreed to pay Rs.53,20,000/- within 15 days, but not received the amount as per the agreement and as per agreement the complainant has paid only Rs.52,70,000/- and has not yet paid the balance amount of Rs.6,05,000/- besides the payment of Rs.7,75,000/- due from M/s.Sri Renga Properties Developers Private Ltd. The opposite party is ready and willing to complete the work of the Villa No.38, on payment of Rs.13,80,000/- and thereby there is no deficiency of service on the part of the opposite party and the complaint is to be dismissed. Learned State Commission after hearing both the parties allowed complaint and directed OP to refund Rs.70,45,000/- along with Rs.5,00,000/- as compensation and Rs. 15,000/- as cost against which, this appeal has been filed along with application for condonation of delay.
4. Heard learned Counsel for the parties and perused record.
5. As there is delay of only 4 days in filing appeal, delay stands condoned for the reasons mentioned in the application.
6. Learned Counsel for the appellant submitted that after 95% completion of construction, learned State Commission committed error in allowing refund of amount and further committed error in deeming payment of Rs. 7,75,000/- given to earlier builder and Rs. 10,00,000/- as cash; hence, appeal be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that learned State Commission rightly considered payment of Rs. 7,75,000/- and Rs.10,00,000/- in cash towards agreement to sell and rightly passed order for refund as construction was incomplete; hence, appeal be dismissed.
7. The core question to be decided is whether complainant made payment of Rs. 7,75,000/- and Rs. 10,00,000/- to OP or not?
8. Complainant in para 4 of the complaint mentioned that total cost of construction including land was Rs.76,50,000/- and as per insistence of OP, complainant paid Rs.10,00,000/- by way of cash and agreement was executed for remaining amount Rs.66,50,000/- and he made total payment of Rs.70,45,000/-. OP in its reply has not replied to para 4 & 5 of the complaint, but in para 6 of the written statement admitted that Rajahram, Chairman of Sri Renga Properties close relative of complainant informed OP that complainant has deposited Rs.7,75,000/- with Rajahram in order to purchase apartment. This fact finds corroboration from para 6 of the agreement, according to which OP agreed to get transferred Rs.7,75,000/- from Sri Renga Properties. In such circumstances, it becomes clear that OP agreed to receive Rs.7,75,000/- from Sri Renga Property Developers Ltd. which amount was paid by complainant to Sri Renga Property Developers Ltd. and in such circumstances payment of Rs.7,75,000/- is to be treated as payment received by OP in pursuance to agreement to sell dated 25.4.2010 executed between the parties.
9. It is true that in the agreement to sell sale consideration has been shown as Rs.66,50,000/- whereas complainant pleaded in the complaint that sale consideration was Rs.76,50,000/- and on insistence of OP complainant paid Rs. 10,00,000/- in cash and for remaining amount agreement was executed. OP has not denied this averment in written statement and in such circumstances, fact not denied in reply can be treated as admission on the part of OP. Not only this, perusal of e-mail dated 24.6.2011 sent by OP to complainant reveals that Rs.10,00,000/- of cash was handed over to Sri Renga Property as OP cannot handle cash transactions which makes it crystal clear that OP received payment of Rs.10,00,000/- in cash from complainant. Statement of ledger account of complainant maintained by OP also reveals that on 2.4.2010, OP received Rs.10,00,000/- in cash from complainant
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and on 30.4.2011 credited Rs.7,75,000/- from credit receipt (promissory note) from Sri Renga. By entry dated 1.3.2011. Cash entry of Rs.10,00,000/- was reversed showing that it was wrong entry which cannot be believed because OP admitted in e-mail dated 24.6.2011 and has not denied this fact in written statement in reply to para 4 of the complaint. Any entry cannot be reversed after 11 months without any basis. 10. Learned State Commission after elaborate discussion and consideration of documents rightly allowed complaint and passed order of refund of Rs.70,45,000/-. 11. I do not find any illegality in the impugned order and appeal is liable to be dismissed. 12. Consequently, appeal filed by appellant is dismissed with no order as to costs.