M.K. Mathivathanan vs REVATHI RAJALINGAM

THIS appeal is directed against the order dated 10th day of April, 1997 in O.P. No. 322/96 on the file of the District Consumer Disputes Redressal Forum, Madras : South.

THE opposite party one M.K. Mathivathanan, Proprietor, Kasi Builders, is the opposite party while the respondent Mrs. Revathi Rajalingam is the complainant. THE opposite party is a builder. He announced a housing scheme known as "Kasi Group Housing Benefit Scheme". According to the said scheme, for a minimum of 20 members who joined the scheme and deposited Rs. 10,000/- each every month for a period of 15 months, a draw would be made once in every two months and after the draw, one member would be allotted a flat of 1000 sq. ft. in and around Valasarawakkam, K.K. Nagar, Vadapalani, Porur, etc., the choice being that of the member joining the scheme. Believing the scheme so announced by the opposite parties, the complainant joined the scheme on 30.6.1995. She had been remitting monthly instalments due promptly till February, 1996. On 16.2.1996, it appears, on an enquiry made, it was revealed that the opposite parties did not at all conduct any bio-monthly draw and the flats were not allotted to anyone of the members who joined the scheme, besides not sending any intimation to anyone of them. Suspecting the bona fides of the scheme, the complainant, with a view to withdraw from the scheme, sent a letter dated 26.2.1996 to the opposite party. The opposite party, in turn, it is said, insisted and obtained a letter from the complainant stating that only 60% of the amount she had already paid to them would be given to her. It appears, she has also made a complaint to the police and others.

She has so far paid Rs. 77,500/- to the opposite party for 8 monthly instalments. So far as the first monthly instalment was concerned, she was given a deduction of Rs. 2,500/-; because of the said reason, the eight monthly instalments stated to have been paid by her totalled to Rs. 77,500/-. Since the opposite parties refused to return the instalments so paid by her, there was no other go for her but to resort to the action before the Forum below for the recovery of the amount so paid by her besides a specified sum for mental agony and other reliefs.

THE opposite party would file objections reflecting as below : THEre is no denial on the part of the opposite party with regard to the scheme as announced by them. THEre is also no denial about the payments stated to have been made by the complainant to the opposite party viz., 8 monthly instalments. What they would further contend is that the complainant under no circumstances would be entitled to withdraw from the scheme. It is also contended that there was no deficiency on their part and the scheme in fact was pushed through as per the announcement, in the sense of even conducting bio-monthly draws and making allotment of flats to the members who joined the scheme. In such circumstances, they would further contend that there was no unfair trade practice or deficiency in service on their part. THErefore they prayed for dismissal of the complaint. Both the complainant and the opposite party, of course, filed proof affidavit. The complainant, in support of the averments in his complaint, would file Exhibits A1 to A14. But so far as the opposite party is concerned, in support of their version, no document whatever had been placed on record by way of Exhibits.

THE Forum below, after taking into consideration the materials placed on record and after hearing the projection of hues of views by the parties through their respective Counsel, ultimately rendered a finding that there was deficiency in service on the part of the opposite party and directed them to refund to the complainant the sum of Rs. 77,500/- together with interest @ 18% per annum from the date of complaint i.e., 16.3.1996 till payment and another sum of Rs. 1,000/- within one month from the date of its order. Aggrieved by the order as above, the appellant/opposite party resorted to the present action. The appellant/opposite party in fact engaged a Counsel of their choice viz., learned Counsel Mr. V. Ayyadurai. But the said learned Counsel is not present in the Court today when the matter came up for hearing. The opposite party is also not present in the Court. The fact that learned Counsel representing the opposite party and the opposite party are not present, does not mean that this matter cannot at all be disposed of on merits, of course after hearing the arguments of learned Counsel Mr. K.R. Murali, appearing for the respondent/complainant and on perusal of the materials placed on record. That is exactly what we have done in the case on hand.

EVEN at the outset, we may point out that there are absolutely no merits warranting interference with the order of the Forum below on the facts and in the circumstances of the case. There is no pale of controversy that the complainant had joined the Kasi Group Housing Benefit Scheme and remitted the instalments due for 8 months promptly and the total sum so paid by her amounted to Rs. 77,500/-. Though the opposite party would make a tall claim in the version filed as well as in the proof affidavit that the scheme was properly conducted, in the sense of conducting the bio-monthly draw and allotting of flats to the members who joined the scheme which is to their choice, yet, practically no scrap of paper or material had been placed on record in proof of the same. The complainant has stated in her proof affidavit as well as in the averments made in the complaint that she wanted to withdraw from the scheme suspecting the bona fides of the opposite party. So she sent a letter as already indicated, for her withdrawing from the scheme and making a request to the opposite party to refund the amount of 8 monthly instalments already paid by her. But that request was not at all complied with. The fact that the opposite party had taken up a stand in the version filed that under no circumstances it would be permissible for the complainant to withdraw from the scheme, does not mean that in all eventualities and circumstances the complainant cannot at all withdraw from the scheme. If the scheme was an on-going scheme as represented by the opposite party, then, in such an eventuality, the stand so taken up by the opposite party would make any sense, leave alone any document not having been filed to support of such a stand. In the case on hand, the scheme as announced by the opposite party was not at all an on-going scheme and the scheme has been prepared to dupe, dope and make the members join the scheme and nothing further. In such circumstances, withdrawal from the scheme by the complainant cannot at all be found fault with. Therefore, the refusal of the opposite party to refund the entire amount paid by the complainant, in such circumstances, definitely constitutes deficiency in service and unfair trade practice on the part of the opposite party. In this view of the matter, the order of the Forum below cannot at all be stated to be not sustainable in law. As such, the appeal deserves to be dismissed.

THE Forum below, awarded cost in a reasonable sum of Rs. 1,000/- which does not warrant any interference. In fine, the appeal fails and the same is dismissed. We direct the appellant/opposite party to pay to the respondent/complainant a cost of Rs. 2,000/- to the complainant in this action within one month from the date of receipt of the order of this Commission. We also observe that in case the opposite party fails to comply with the order of this Commission, it will be open to the respondent/complainant to invoke the wrath of the provisions of Section 27 of the Consumer Protection Act, 1986. Appeal dismissed.