BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY

Dated this the 3^rd day of  May, 2018

Consumer Complaint No.4/2017

Darmaradjou Raja, son of R. Darmaradjou

No.5, Saint Rosario Street,                

Muthialpet,                         

Pondicherry – 605 003.

………                                  Complainant

                                                               vs

J. Ananthan, Proprietor 

A & B Construction,                                                                    

No.7, Romain Rolland Street,                 

Pondicherry – 605 001.

                                                          ……….                          Opposite Party

BEFORE:

HON’BLE JUSTICE Thiru K. VENKATARAMAN,   

PRESIDENT

 Thiru S. TIROUGNANASSAMBANDANE,

MEMBER

FOR THE COMPLAINANT:

Thiru J. Cyril Mathias Vincent, Advocate   

FOR THE OPPOSITE PARTIES

Thiru Kalaivanan,  Advocate

ORDER

(By Justice Thiru K. Venkataraman, President)

          The complainant filed the present complaint u/s 15 (1) (a) of Consumer Protection Act, 1986 directing the opposite party (a) to return and refund the sum of Rs.34,00,000/- received by the opposite party from the complainant with interest @ 24% p.a. from 01.11.2013 till the date of repayment in full quits; and (b) to pay a sum of Rs.40,00,000/- as damages for breach of contract with interest @ 18% per annum from the date of the order till the date of payment in full quits; (c) to pay a sum of Rs.20,00,000/- as compensation for the delay and deficiency, for disappointment, mental pain and agony and physical strain, with interest @ 18% p.a. from the date of the order till the date of payment of full quits; (d) to pay a sum of Rs.5,00,000/- towards costs.

          2. The gist of the complaint put forth by the complaint before us are  set out hereunder. 

          The complainant is a retired Colonel from the Indian Army and thought of purchasing a flat in the complex known as "Temple Way Avenue" situated at E.C.R. Road, 100 Feet Road, Lawspet, Pondicherry.  The opposite party fixed a sum of Rs.36,00,000/- for the flat bearing door No.3, Second Floor, 'D' Block of the Temple Way Avenue complex and a memorandum of agreement dated 17.01.2014 was entered into between himself and the opposite party.  As per the said agreement, the opposite party has to construct a flat measuring 944 sq.ft. of the building and shall execute a sale deed for Undivided Share of 494 sq. ft. of land.  The complainant has paid a sum of Rs.20,00,000/- on 01.11.2013, a sum of Rs.9,00,000/- on 12.03.2014 and a sum of Rs.5,00,000/- on 17.03.2014.  Thus, in all, the complainant has paid a sum of Rs.34,00,000/- to the opposite party and only a sum of Rs.2,00,000/- is left out. 

          b) The opposite party executed a sale deed dated 12.05.2014 in respect of the Undivided share over the land.  However, while handing over the sale deed, deliberately omitted a page wrongly corrected the page numbers.  He is taking a separate steps for the same.

c) Though the agreement was entered into in the year 2014, so far, the opposite party has not finished the stair case, failed to install the elevator etc.  Therefore, the complainant has preferred the complaint for the following reliefs:

(a) to return and refund the sum of Rs.34,00,000/- received by the opposite party from the complainant with interest @ 24% p.a. from 01.11.2013 till the date of repayment in full quits; and

(b) to pay a sum of Rs.40,00,000/- as damages for breach of contract with interest @ 18% per annum from the date of the order till the date of payment in full quits;

(c) to pay a sum of Rs.20,00,000/- as compensation for the delay and deficiency, for disappointment, mental pain and agony and physical strain, with interest @ 18% p.a. from the date of the order till the date of payment of full quits;

(d) to pay a sum of Rs.5,00,000/- towards costs.

          The reply version has been filed on behalf of the opposite party setting out the following facts.

          Though the statement that a memorandum of agreement was entered into between the complainant and the opposite parties is accepted and the payment also accepted, it is contended that the opposite party could not complete the construction since the complainant and other buyers who had entered into an agreement with him created a false propaganda and hence, he could not sell the remaining flats.  The bank has foreclosed the loan and attached the properties of the opposite party including his residential house.  Therefore, the opposite party was unable to complete the construction.  Further, the opposite party has been under dialysis once in two days and he is advised for transplantation and hence, due to his health condition, he is advised complete rest.  He has completed 95% of the work and 5% of the work is only remaining.  Thus, the reply version seeks for dismissal of the complaint.

          On behalf of the complainant, the complainant examined himself as CW1 and 12 documents have been filed on his behalf and marked as Exs.C1 to C12.  On behalf of the respondent, the respondent examined himself as RW1 and no documents were filed through him.

          We have perused the complaint, reply version, the documents and also heard the Counsel appearing for the complainant as well as the opposite party.  We have also perused the written submission made on behalf of the complainant.

          The following points are framed by us:

          1. Whether the complainant is a Consumer?

          2. Whether there is any deficiency in service on the part of the opposite party?

          3. To what relief, the complainant is entitled to?

          On point No.1:

          We are of the view that the complainant having entered into an agreement with the opposite party for putting up a construction for him and has paid the money, on failure by the opposite party to complete the construction has approached this State Commission seeking certain reliefs and hence, has to be considered as a Consumer as per the Consumer Protection Act, 1986.

          On Point No.2:

          It is an admitted case that the complainant entered into an agreement with the opposite party under Ex.C2 dated 17.01.2014 for putting up a Construction of a flat and for execution of the Undivided Share over the land.  The complainant, out of Rs.36,00,000/-, has paid a sum of Rs.34,00,000/- which is also not disputed by the opposite party.  The receipts that have been filed by the complainant to show payment to the opposite party are marked as Exs.C1 and C3.  The sale deed was executed in respect of the undivided share over the land which is marked as Ex.C5.  In the cross-examination, the opposite party fairly admitted the payments except payment of Rs.2.00 lakhs.  Thus, he admitted that the amounts have been paid by the complainant and have been received by him.  But, it is unfortunate to note that the opposite party in his cross examination has stated that he did not know anything about the statement made in the reply version and the proof affidavit.  One more admission has been made by the opposite party in his cross examination is to the effect that he has not completed the construction of the flat as per Ex.C2 agreement.  Thus, the opposite party has fairly admitted that out of Rs.36,00,000/- agreed between the parties, as per the agreement Ex.C2, Rs.34,00,000/- has been paid by the complainant to the opposite party.  While so, it may not be appropriate on the part of the opposite party not to complete the construction and handover the same to the complainant.  The complainant has given a lame excuse in the reply version that he could not complete the construction because of the false propaganda of the complainant as well as the other buyers.  Though it has been set out in the reply version, no evidence is given for establishing such statement made in the reply statement i.e. what is the propaganda that has been made by the complainant as well as the other buyers has not been said and the same has not been proved by the opposite party.  Even assuming that such propaganda made by the complainant and other buyers, it cannot be a ground for the opposite party not to finish the construction and hand over the flat to the complainant.  Having received Rs.34,00,000/- out of Rs.36,00,000/-, it is the duty of the opposite party to complete the construction and handover the flat to the complainant.

          A batch of matters have been filed against the very same opposite party alleging that after receipt of the money from the complainants, the opposite party has not completed the construction and handed over possession to the respective complainants.  An order came to be passed by us directing the opposite party to complete the construction and hand over the same within three months to the respective complainants thereon.  Also  we have ordered compensation for the complainants thereon varying from Rs.10.00 lakhs to Rs.6.00 lakhs thereon.  The complainants thereon have paid the money to the opposite party ranging from 2008, 2011 and 2012.  However, the complainant herein has paid the money to the opposite party only in the year 2014.

          The above facts will prove that there is a deficiency on the part of the opposite party and the complainant is entitled to a compensation for the same.

          On point No.3:

          Considering the overall circumstances referred to above, we are of the view that the opposite party has to complete the construction within three months from the date of receipt of this order and pay a sum of Rs.2.00 lakhs to the complainant as damages for not handing over the property in time and causing mental agony to the complainant.

          A sum of Rs.10,000/- is awarded as costs in this proceedings.

          Thus, the complaint is disposed of with a direction to the opposite party, as follows:

          a) To complete the construction of the flat which is agreed as per the agreement dated 17.01.2014 (Ex.C2) as per the specifications mentioned in the agreement within three months from the date of receipt of this order.

          b) to pay a sum of Rs.2,00,000/-  as compensation to the complainant within a period of three months from this date failing which, failing which it will carry an interest at 10% from the date of expiry of three months till the full payment is made;

          c) a cost of Rs.10,000/- payable by the opposite party to the complainant

          d) In view of the relief that has been granted to the complainant, the relief that has been sought for by the complainant, namely, that the opposite party shall pay to the complainant a sum of Rs.36,00,000/- which has been paid by the complainant to the opposite party under the agreement Ex.C2 is not granted.

          Thus, the complaint is disposed of in the manner set out above. 

Dated this the 4^th day of May, 2018

(Justice K. VENKATARAMAN)

PRESIDENT

(S. TIROUGNANASSAMBANDANE)

MEMBER

'A' SCHEDULE PROPERTY:

          Puducherry Registration District, Oulgaret Sub-Registration District, Oulgaret Municipality, Village No. 38, Saram Revenue village

As per document in cadastre Nos.1331 1/5,1331 3/5,1339 ¾, R.S.No.142/7, vacant land,32,280 Sq.feet or 30-Ares.

Boundaries: To the East of R.S. No.143 land owned by Kuxhandaivel, to the west of J. Ananthan land and Puducherry Slum Clearance Board land, to the south of
J. Ananthan land and canal and R.S.No. 142/8 land and R.S.No.142/61 and to the north of J.Ananthan’s land

2. In cadastre No.1338 part, 1340 part, R.S.No.142/8 vacant land 1266 Sq.feet or 117.65 Sq.mts.

Boundaries: To the East of Canal and 100 feet Road, to the North of canal and
J. Ananthan Plot, to the west and to the south of M/s Kasilival petrochem purchased land.

3. In cadastre Nos.1338 part,1340pat,R.S.No.142/8 vacant land,1300 Sq.feet or 120.81 Sq.mts.

Boundaries: To the East of 100 feet road and J. Ananthan Plot, to the west of J.Ananthan plot, to the south of D. Jayaraj plot and to the north of J. Ananthan plot and

4. In cadastre Nos.1331/5, 1331 /3/5,1339 /2/4,1339/3/4,1331/2/5 part R.S.No.142/7, vacant land 29 Ares,60 centiares or 31,850 Sq.feet

Boundaries: To the south of owner’s remaining land in R.S.No.142/7 and R.S.No.142/6 land to the east of R.S.No.143 land and owner’s remaining land in R.S.No.142/7 to the North of canal and to the west of Gramani’s Land.

'B SCHEDULE PROPERTY:

          In the 6 storeyed Residential Apartments to be constructed in A-Schedule land, D Block in the Second Floor Flat No.3 having an extent of 944 sq. ft. including undivided share in common areas and facilities shaded RED in the plan enclosed.

(Justice K. VENKATARAMAN)

PRESIDENT

(S. TIROUGNANASSAMBANDANE)

MEMBER

LIST OF COMPLAINANT'S WITNESSES:

CW1           03.11.2017           Darmaradjou

LIST OF OPPOSITE PARTYS' WITNESS:

RW1           25.01.2018           J. Anandan,                     

LIST OF COMPLAINANT'S EXHIBITS:

LIST OF OPPOSITE PARTYS'  EXHIBITS: NIL

(Justice K. VENKATARAMAN)

PRESIDENT

(S. TIROUGNANASSAMBANDANE)

MEMBER