Date of Filling:      28.02.2018

                                                                                                                       Date of Disposal:  10.11.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:   THIRU.S.PANDIAN, B.Sc., L.L.M.                                 ….PRESIDENT

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

CC No.15/2018

SATURDAY, THE 10^th   DAY OF NOVEMBER 2018

1.T.E.Malathy,

   W/o.Murali,

   No.17, Old Township Road,

   Ambattur, Chennai -53.

2.K.V.Murali,

    S/o.K.V.Chellappa,

   No.17 Old Township Road,

   Ambattur, Chennai -53.                                       ……Complainants.

                                                 //Vs//

1.P DOT G Construction (P) Ltd.,

2.MR.P.G.Prabhakar Reddy, Director,

3.Anaikar Ruman Fathima,

    D/o.Anaikar Muhammed Aslam,

4. Bhuvana Balakrishnan,

    All are having office at

    P DOT G Construction (P) ltd.,

   8 Square, No.26, Sapthagiri  Nagar,

   Valasaravakkam,

   Chennai -600 116.                                                   …….opposite parties.

The complaint is coming upon before us finally on 23.10.2018 in the presence of M/s. K.V.Srinivasan, counsel for the complainant and the opposite parties were set Ex-parte for non appearance and having perused the documents, evidences and written argument of the complainant side,  this Forum delivered the following.

ORDER

PRONOUNCED BY THIRU.R.BASKAR KUMARAVEL, MEMBER.

This complaint is filed by the complainant U/S 12 of the Consumer Protection Act-1986 against the opposite parties for seeking direction to hand over possession of the fully constructed flat along with the amenities or to return the entire amount paid by the complainant and to pay a sum of Rs.5,00,000/- towards compensation for causing mental agony, hardship due to the deficiency of service on the part of the opposite party and with cost of Rs.10,000/-

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

On assurances of the opposite parties, the complainants booked an apartment on 05.12.2014 and deposited an advance amount of Rs.50,000/- by way of cheque on 08.12.2014 and in turn the opposite party had allotted flat No.126 in their project sunshine and the sale agreement and construction agreement were executed in between the parties on 20.01.2015, and the opposite parties agreed to complete the constructions work and hand over the possession to the complainant, by the end of 20.06.2016, including the grace period sought by the opposite parties.  The opposite parties executed a registered sale deed infavour of complainants, on 05.05.2015 vide document No.5341/2015 on the file of Sub Register Office, Thiruvallur.

3. It is further submitted that the complainant approached on 13.02.2015 for loan from Tata Capital Housing Finance Limited and the opposite parties received payments of Rs.14,50,000/- without any default on the part of the complainants side towards the stage wise payment, as and when sought by opposite party but the construction work is not pursued, in complainants block, and it is kept pending at the basement level.

4. As per the construction agreement i.e BUILDER/PROMOTER COVENENTS the Builder (i.e) opposite party, undertook to pay a rent of Rs.5/-per sq.ft on the total super built up Area, for such delayed period.  As per the specifications, complainants are entitled for Rs.4,520/- per month of July 2016 onwards. Till date, no amounts were adjusted or credited in favour of complainants so far, and hence they had sustained financial loss, believing that assurances of opposite party the complainant availed loan and is paying bank interest for that loan periodically.

5. As per the construction agreement, opposite party had not handed over the allotted Flat, and therefore complainants were forced to live in a rented premises, due negligence and of delay and are spending nearly 1,40,000/- per annum, towards rent.  When complainant visited the site of construction they were shocked to note down that there was change in the construction.

6. It is further submitted that several mails and communication were sent and informed in person and hence finally on 12.01.2017 complainants sent a legal notice to the opposite party.  In turn the opposite party offered complainants to exchange the original booking with another flat in different block (flat No.107 in Bloom Block) which is near completion and also issued swap certificate.  But later, the opposite party failed to fulfill that assurance also, for which complainants suffered further loss of Rs.7500/- on account of processing fee for availing further loan.  When complainants questioned opposite party, the office agreed to repay the entire amount paid by the complainants with interest and also the expenses incurred by him and pay a part payment of Rs.2,25 lakhs and gave a cheque for the balance amount.  This cheque was dishonored and complainants issued notice under section 138 of NI Act, to the opposite party.  The opposite party sent a reply to the complainants that they are willing to settle the issue, but so for opposite parties have not taken any steps for negotiation or paid back the amount received.

7. Notice was also issued to opposite party on 11.12.2017 and acknowledgement was received, but they have failed to comply with the demands or sent any reply.   The opposite parties called complainants to settle amicably, believing the words of the opposite parties, the complainants contacted the opposite parties, from their no response.  Therefore there is a deficiency of service on the part of the opposite parties and caused mental agony and financial loss to the complainant.  Hence this complaint is filed.

8. Though sufficient opportunities given to the opposite parties, they did not turned up before this Forum even on receipt of notice, hence the opposite parties were set Ex-party.

9. In order to prove the case, on the side of the complainant, the proof Affidavit submitted as his evidence and Ex.A1 to Ex.A16 were marked.

10. At this juncture, the point for consider before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint by the complainant?

2. To what other reliefs, the complainant is entitled to?

11. Written argument filed and oral argument also adduced on the side of the complainant.

12. In such circumstances, this Forum decided to conclude this mater fully on merits with available evidence and documents putforth before this Forum, though the opposite parties were set Ex-party.

13. Point No.1:-

According to the case of the complainants though the complainants had entered into sale cum construction agreement for purchasing flat No.126 with opposite parties and paid part amount for construction of flat, the opposite parties have not constructed of flat in time as agreed in the construction agreement and not handed over possession within stipulated time, it amounts breach of contract on the side of the opposite parties and thereby opposite parties caused deficiency of service against the complainants.  Hence the complainants filed this instant complaint before this Forum.

14. According to the case of the complainants, to shift their family and to settle at Thiruvallur, complainants intended to purchase apartment from opposite parties as per their project. The complainant booked an apartment with the opposite parties on 05.12.2015 which is marked as Ex.A1, and paid as an advance amount of Rs.50,000/- to purchase apartment by way of cheque on 08.12.2014, after receiving the cheque, the opposite parties issued receipt on the same day which is marked as Ex.A2, and allotted the flat No.126 in Golden Ray Block of their Sunshine project.  Thereafter, the complainant entered into sale cum construction agreement on 20.01.2015is marked as Ex.A5, in which the opposite parties stipulated the one of the terms and condition of a clause as time for completion of construction within 12 months, if unable to complete within 12 months due to unavoidable circumstance and within 6 months of grace period construction should be completed and possession to be handed over to the complainant.  As per the terms and conditions in the construction agreement stipulated both parties agreed for consideration of construction of flat an extent of 789 square feet as Rs.20,30,425/-, this amount can be paid by complainant in stage wise to the opposite parties, this is evidenced by Ex.A2 filed on the side of the complainant.  As per the construction agreement the possession of the flat to be handed over to the complainant by 20.06.2016 including grace period sought by the opposite parties, but the opposite parties fails to do so.  This amounts to deficiency of service, which has caused severe mental agony and monitory loss to the complainant.  Because of the opposite parties have not completed the construction, the complainants have to reside in the rental house and was spending Rs.1,40,000/-per annum for house rent, but there is no evidence produced by the complainant for this claim.

15. The opposite parties executed sale deed in favour of complainants on 05.05.2015 before Sub Registrar Office, Thiruvallur and document No.5341/2015 which has been filed by the complainant and marked as Ex.A7.  Further, the complainant filed loan application for construction of house before the Tata Capital Housing finance limited the same was sanctioned by the finance limited, the sanction letter dated 13.02.2015 filed as documentary evidence on the side of the complainant marked as Ex.A6. The loan amount sanctioned by the Tata Capital Housing limited is Rs.15,00,000/- in which the opposite parties received Rs.9,00,000/- from the Bank and 5,44,308/- from the complainant in total 14,44,308/-evidenced through the Ex.A9 marked on the side of the complainant, the above amount is received by opposite parties from the complainant as part of consideration for construction of said flat No.126 as per the construction agreement.  But even after receiving the huge amount from the complainant they have not progressed in his work of constructing the flat No.126 in the Golden Ray Block.  It was kept pending at the basement level, when the complainant visited the construction site, because in the terms and conditions of construction agreement it is clearly stipulated that at any time the complainant (parties) can visit the construction site to know the progress.  Based on this condition the complainant visited the construction site and construction was at basement level only.  This amounts to violation of terms and conditions as agreed by the both parties in the construction agreement. From July 2016 the delay caused by opposite parties not handing over possession of flat as per the one of the condition stipulated in the construction agreement that the opposite parties have to pay Rs.5/- per square feet as rent for total area of 789 square feet, Rs.4,520/- per month.  Since the complainant has not prayed as specific relief before this Forum, he is not entitled for this claim.

16. However the complainant states that he has sent E-mail to know the progress of construction which is marked as Ex.A8(s), but no response from the opposite parties.  Thereafter, the complainant sent legal notice to the opposite parties on 12.01.2017, after receiving this legal notice the opposite parties offered complainants to exchange the original booking with another flat in different block (flat No.107 in Bloom Block) which is near completion and also issued swap certificate marked as Ex.A9, but the opposite parties failed to fulfill that assurance also.  Believing at the words of the opposite parties, complainant applied for further loan before the Axis Bank.  The loan form of Axis Bank filed by the complainant marked as Ex.A10, but there is no evidence for the Rs.7,500/- spent as processing fee.  Further the opposite parties intended to negotiate the issue with the complainant as part payment of Rs.2,25,000/- lakhs and gave a cheque for the balance amount.  The cheque was dishonored and complainants issued notice Under Section 138 of NI Act to the opposite parties, which is marked as Ex.A13 and they sent reply notice on their side ready for willing to settle the issue which is marked as Ex.A14, till now the opposite parties have not come forward to settle the issue.

17. Further the complainant pleads that the opposite parties agreed to offer flat No.CG-7 in their project Dreams at same locality, but in a different project instead of the original project flat No.126 in Sunshine apartment and further offered to repay the difference in cost which is amounting to Rs.3,25,000/- but the opposite parties failed to do so, this amounts to deficiency of service and unfair trade practice on the side of the opposite parties.  Finally, the complainant sent a legal notice to the opposite parties on 11.12.2017 is marked as Ex.A15, demanding opposite parties either to complete the construction of flat and handed over the possession of the same as per the construction agreement or settle the issue amicably by returning the entire amount paid by the complainant to the opposite party but no reply from the opposite parties.  Acknowledgement card only received by the complainant from the opposite parties which is marked as Ex.A16.

18. While going into the facts and circumstances of the complainants case and documentary evidences produced on the side complainant to substantiate his claim against opposite parties. On the other hand the opposite parties have not appeared before this Forum to answer the claim of complainant with due process of law.  It is pertinent to note that mere averment in the reply notice of opposite parties will not be sufficient to prove that the complainant is a defaulter.  Infact, the complainants have proved his case before this Forum beyond reasonable doubt with all legally acceptable evidences, exclusively through Ex.A5 that the opposite parties have committed breach contract with complainant not completing the construction work and handed over the same within the agreed time amounts to deficiency of service.  As per the Ex.A3and Ex.A9 it is an admitted fact on the side of the opposite parties that received the amount of Rs. 14,44,308/- from the complainant and not re-paid the amount to the complainant for not-completing the construction of flat and failed to handed over the possession flat No.126 in Golden Ray Block in their Sunshine project within stipulated time as per the construction agreement as agreed by both parties and the complainants are unnecessarily paying the EMI to Tata Capital Finance Limited.  The above malafide act of the opposite parties which amounts to unfair trade practice and deficiency of service on the part of the opposite parties.  Thus the point No.1 is answered accordingly.

19. Point No.2:-

At the outset, as per decision arrived in the point No.1, the complainant is entitled for reliefs as prayed in this complaint and to get reasonable compensation for mental agony and hardships to the complainant due to the deficiency of service on the part of the opposite parties.

In the result, this complaint is allowed in part.  Accordingly, the opposite parties 1to4  jointly or severally are directed  to  complete the construction fully of the alleged flat as per the terms of  Document No.5 and will hand over the same to the complainant within three months in a full pledged manner failing which, the opposite parties 1to4 are directed to return the entire agreed amount paid by the complainant  and received by the opposite parties with interest at the rate of 10% from the date of this complaint (28.02.2018) till the date of return of the said amount and also to pay  a sum of Rs.50,000/- (Rupees fifty thousand only) for delayed construction and thereby caused mental agony and financial loss due to the deficiency of service on the part of the opposite parties 1to4 and also to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.  Regarding other reliefs, this complaint is dismissed.   

Regarding, the above said amount of Rs.60,000/- (Rupees Sixty thousand only) towards compensation and the cost shall be payable within one month separately from the date of receipt of the copy of the order, failing which, the said amount shall carry interest at the rate of 9% per annum till the date of payment

Dictated by the member to the steno-typist, transcribed and computerized by him, corrected by the member and pronounced by us in the open Forum of this 10^th November 2018.

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        MEMBER                                                                               PRESIDENT

List of document filed by the complainant:-

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               MEMBER                                                                        PRESIDENT