Date of Filing      : 09.12.2020

                                                                                                                 Date of Disposal: 12.07.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                                  .…. PRESIDENT

                 THIRU. J.JAYASHANKAR, B.A, B.L.                                                                            ..… MEMBER-I

                 THIRU.P.MURUGAN, B.Com.,                                                                                    .....MEMBER

CC. No.33/2020

THIS TUESDAY, THE 12th DAY OF JULY 2022

 

Mrs.Sophia Mirnalini,

W/o.Samson Kamal,

Rep.by its Power Agent Mrs.Bakiam Stanislaus,

No.6, Arokial Illam, Udaya Suryan Street,

Mittnamallee, IAF Post,

Avadi, Chennai – 600 055.                                                                 ……Complainant.  

                                                                                 //Vs//

Achalaesh Infrastructure,

Rep. by its Proprietor Mr.C.Siva Shankar,

S/o.K.Chinnaraj,

708,2nd floor, Agaram Main Road,

Tiruvanchery, East Tambaram,

Chennai -73.                                                                                      …..opposite party.

 

Counsel for the complainant                                                :   M/s.R.Meenakshi, Advocate.

Counsel for the opposite party                                            :   exparte 

                         

This complaint is coming before us on various dates and finally on 28.06.2022 in the presence of M/s.R.Meenakshi Advocate,  counsel for complainant and the opposite party was set exparte and upon perusing the documents and evidences of the complainant this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party with prayer to hand over the Villa as per the construction agreement, to pay a sum of Rs.7,44,968/- towards compensation for mental agony and the rent paid by the complainant and to pay a sum of Rs.25,000/- towards cost of the proceedings to the complainant.

Summary of facts culminating into complaint:-

 

The crux of the complaint was that the complainant entered into an agreement with the opposite party for purchase of Villa to be constructed by the opposite party in the plot No.159 situated in the layout “DOLLERS COLONY PHASE-I” comprised in S.No.248/1B of Agaramthen Village, Tambaram Taluk, Kancheepuram District for total consideration of Rs.29,59,600/- which includes construction costs.  The payment schedule as agreed between the parties after paying the advance amount of Rs.8,25,000/- was as follows;

1. On booking and Agreement = 60%

2. On completion of foundation = 15%

3. On completion of ground floor Roof = 10%

4. On completion of plastering =10%

5. On handing over = 05%

It is further agreed between the parties that the opposite party agreed to hand it over for occupation within 12 months from the date of agreement with an additional grace period of 6 months subject to the standard specification and strict adherence of schedule of payments by the complainant. The complainant on deposit of Sale Deed with LIC Housing Finance Limited got loan amount released sum of Rs.13,35,600/- on 31.03.2018 and Rs.5,00,000/- on 26.03.2019.  It is submitted by the complainant that she had paid an amount of Rs.26,60,600/- out of the total agreed amount of Rs. 29,59,600/.  Thus only a mere amount of Rs.2,99,000/- was the balance amount to be paid by the complainant. When the complainant visited the site, she was shocked to see that the work was not completed though it was agreed by the opposite party to handover possession on 10.02.2019 itself.  If there is any grace period the villa ought to have been delivered on 10.08.2019.  It is submitted by the complainant that whenever she enquired with the opposite party the staff of the opposite party gave only an evasive reply.  Thus aggrieved the complainant issued a legal notice and had preferred the present complaint for the reliefs as mentioned below;

a) To handover the Villa as per construction agreement.

b) To pay a sum of Rs.7,44,968/- towards compensation for delay in delivering the possession with interest @24% per annum from the month of September 2019 to till date of filing this complaint.

c) To pay a sum of Rs.5,00,000/- towards compensation for mental agony and the rent paid by the complainant and the interest received by the LIC Housing Finance Limited from the complainant.

d) To pay a sum of Rs.25,000/- towards cost of the proceedings.

Inspite of sufficient notice issued to the opposite party he did not choose to appear before this Commission to deny the complainant’s allegations put forth before this Commission and have he was called absent and set ex-parte.

On the side of the complainant proof affidavit was filed and documents Ex.A1 to Ex.A11 was produced in support of her allegations;

Point for consideration:

Whether the complainant is successfully in proving that the opposite party has committed deficiency in service in not completing the construction and handing over the Villa to the complainant within the agreed period and also inspite of receiving more than 90% of the total amount from the complainant and if so to what relief the complainant is entitled?

 

Point;

On the side of the complainant following documents were filed in support of her allegations;

The Sale Agreement executed in favour of complainant dated 10.02.2018 was marked as Ex.A1;

The construction agreement was marked as Ex.A2;

General Power of Attorney given by the complainant to her mother dated 15.03.2018  was marked as Ex.A3;

 Tri Party Agreement dated 31.03.2018 was marked as Ex.A4.  

Loan Sanction letter of LIC Housing Finance Limited dated 31.03.2018 was marked as Ex.A5;

Sale Deed  dated 24.08.2018 was marked as Ex.A6;

Memorandum of Deposit of Title Deeds dated 15.03.2019 was marked as Ex.A7;

Statement given by the LIC Housing Finance Limited to the complainant dated 08.02.2020 was marked as Ex.A8;

Legal notice sent by the complainant with return cover dated 09.03.2020 was marked as Ex.A9;

Legal notice sent by the complainant with return cover dated 23.05.2020 was marked as Ex.A10;

Approved plan was marked as Ex.A11;

Heard the oral argument adduced by the complainant and perused the documents and written arguments filed by the complainant.  It is submitted by the complainant that as per the agreement the opposite party ought to have completed the construction of the villa and delivered it within 12 months along with the grace period of six months and also submitted that she was prompt in the payment of money as per the agreed schedule.  Further it is submitted that as the opposite party had failed to comply their commitments she was made to stay in a rental house and also recovery of EMI has been started from the complainant’s Bank account as the complainant had availed housing loan from the LIC Housing Finance Limited for the purchase of the villa. 

Thus the crux of the arguments of the complainant is that inspite of paying more than 90% of the total consideration the opposite party had committed deficiency in service in not delivering the Villa as per the agreed terms in the agreement.  Even in the recent judgement given by the Apex Court in Wg.Cdr. Arifur Rahman Khan and Aleya Sultana and Ors (Vs) DLF Southern Homes Private Limited dated 24.08.2020 the Lordships in their words had held that 

“For the above reasons we have come to the conclusion that the dismissal of the complaint by the NCDRC was erroneous.  The flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities”

Also in a recent Apex Court Judgment in Experion Developers Private Limited Vs Sushma Ashok Shiroor dated 07.04.2022 the Supreme Court has held that for delay in handing over possession, it is duty of the Consumer Forum to award compensation.  In the present case, it is evident that the complainant had paid more than 90% of the agreed amount and only 2,99,000/- was balance to be paid by her.  The statement of account given by the LIC Housing Finance Limited proved the payments made by the complainant.  In such circumstances the act of the opposite party in not delivering the construction within stipulated time as agreed and also not responding for the request by the complainant clearly amounted to deficiency in service.  Further the opposite party also did not choose to appear before this Commission in spite of sufficient notice given to them.  In such circumstances this Commission has no other alternative but to allow the complaint holding that the complainant was successful in proving the allegations of deficiency in service on the part of the opposite party.

When we came to the relief to be granted to the complainant the first relief prayed by the complainant was to direct the opposite party to handover possession.  Thus we order the possession to be handed over within six weeks from the date of receipt of copy of this order.  With regard to the compensation claimed at the rate of 24% i.e., Rs.7,44,968/- we are of the view that interest is on higher side and thus we comprehensively order Rs.1,00,000/- as compensation for the mental agony caused to the complainant.  Further we also order Rs.5,000/- as cost of this proceedings. In the event if the opposite party failed to handover the possession within six weeks, the opposite party in alternative is directed to refund the amount of Rs.26,60,600/- with 9% interest from the date of complaint till realization.

In the result, the complaint is partly allowed directing the opposite party 

a)to hand over possession within six weeks from the date of receipt of copy of this order or in alternative to refund the amount of Rs.26,60,600/-(Rupees twenty six lakhs sixty thousand and six hundred only) with 9% interest from the date of complaint till realization;

 b) to pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for mental agony caused to the complainant;

c)  to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 12th day of July 2022

 

     -Sd-                                             -Sd-                                                        -Sd- 

MEMBER II                               MEMBER I                                             PRESIDENT

 

 

List of document filed by the complainant:-

 

Ex.A1 10.02.2018 Sale Agreement. Xerox

Ex.A2 10.02.2018 Construction Agreement. Xerox

Ex.A3 15.03.2018 General Power of Attorney given by the Complainant to her mother. Xerox

Ex.A4 31.03.2018 Tri Party Agreement. Xerox

Ex.A5 31.03.2018 Loan Sanction Letter of LIC Housing Finance Limited. Xerox

Ex.A6 24.08.2018 Sale Deed. Xerox

Ex.A7 15.03.2019 Memorandum of Deposit of Title Deeds. Xerox

Ex.A8 08.02.2020 Statement given by the LIC House Finance Limited. Xerox

Ex.A9 09.03.2020 Legal notice sent by the complainant with return cover. Xerox

Ex.A10 23.05.2020 Legal notice sent by the complainant with return cover. Xerox

Ex.A11 .................. Approved Plan. Xerox

 

List of documents filed by the opposite party:

 

 Nil

 

      -Sd-                                                           -Sd-                                               -Sd-

MEMBER-II                                              MEMBER I                                    PRESIDENT