Tamil Nadu

South Chennai

103/2002

R.Ramamoorthi - Complainant(s)

Versus

Alonkar Builders - Opp.Party(s)

Ra.Renga

01 Sep 2017

ORDER

                                                                        Date of Filing :  19.02.2002

                                                                        Date of Order :  01.09.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO.103/2002

FRIDAY THIS 1^st DAY OF SEPTEMBER 2017

 

S.Ramamoorthi,

S/o. V.Sethuraman,

Flat No.G-1,

No.42, New No.56,

Mahadevan Street,

West Mambalam,

Chennai 600 033.                                       .. Complainant

                                        ..Vs..

 

The Ramesh Ramanathan,

S/o.J.Vaidiyanathan,

Proprietor of Alonkar Builders,

No.5/3, Ramakrishna Complex,

Devi Karumari Amman Nagar III Street,

Vijaya Nagar, Velachery,

Chennai 600 042.                                              .. Opposite party.

 

 

Counsel for Complainant         :    M/s. Ra. Renga & another

Counsel for opposite party       :    M/s. V. Mani  

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.2,98,775/- towards the cost of rectifying the defects and damages and also to pay a sum of Rs.1,00,000/- towards mental agony for deficiency of service and to pay cost of the complaint.

 1. The averments of the complaint in brief are as follows:

    The complainant submit that he entered into an agreement dated 6.1.2000 for construction of the flat of  total area of 1000 sq. ft. inclusive of 20% for the common area.   Subsequently the complainant purchased the undivided share of land from the opposite party.    The complainant further state that the progress of the construction was very slow.  Even after one year the opposite party did not complete the construction.   Despite of demands made by the complainant the opposite party without carrying out all the works mentioned in the said letter, delivered the key of the flat to the complainant on 20.4. 2001.    The complainant further state that after delivered the possession the construction work done by the opposite party was most unsatisfactory;  cracks developed in the walls in all the Flats and in the parapet walls and stair case room within two months.    Similarly against the  marbles used for the flooring was of cheap quality as there are cracks and holes in the marbles and they are not laid properly.    Electrical fittings and the taps used in the buildings are of sub-standard quality.  Switches were broken or did not function.   The window grills were smaller than the window frames as a result there are gaps all around the grills and the grills are not properly fixed.   

2.     Further the complainant state that  as the actual construction of the flats differed from the plan given by the opposite party as sanctioned plan, the complainant and other owners began to feel suspicious.   Therefore the complainant and others verified at the CMDA office.   To their surprise and shock it was found out that the CMDA has sanctioned for construction of single building of 9 dwelling units on a land of total extent of 4800 sq. ft.   Whereas the plan given to the complainant and other owners as sanctioned plan shows two Buildings on an area of 4800 sq. ft.   One in the front with two dwelling units and the other in the rear with 9 dwelling units.  The plan given by the opposite party to the complainant and other owners, as sanctioned plan shows that the construction of 9 dwelling units on an area of 3854 sq. ft.  So the sanctioned plan is different from the plan given by the opposite party.   The complainant states that the plan given to him and others is a forged one and not the true sanctioned plan.   The complainant therefore submits that there is no sanctioned plan for the construction of 9 dwelling units on an area of 3854 sq. ft.    The complainant further state that it is the duty of the opposite party to get a sanctioned plan and construct the flats according to the sanctioned plan.   Accordingly the complainant sent telegram and notices to the opposite party on 28.8.2001.  The opposite party did not taken any steps to get the regularization nor sent  any reply.    

3.     The complainant further state that the opposite party agreed to provide 20% of the plinth area as common area.    The common area now existing works out only 9%.  Hence there is deficit in the common area provided for the building.   The complainant also state that the opposite party agreed to provide exclusive car parking area to the complainant. The only space available in the building is the eastern side setback which is only  8 ft in breadth even though the opposite party has agreed to provide 10 ft width.   In this space, cars cannot be parked or taken out.  If cars are parked there shall be no sufficient space to park two wheelers and for passage.     The opposite party has failed to allot the car parking area for the complainant.    As such the act of the opposite party clearly amounts to gross deficiency in service and thereby caused harassment, mental agony  and hardship to the complainant.  Hence the complaint is filed.

4. The brief averments in Written Version of  the opposite party    are as follows:

        The opposite party state that the opposite party denies each and every allegation except those that are specifically admitted herein.   The opposite party submit that even as per the terms of the agreement of construction dated 6.1.2000 between the complainant and the opposite party herein, the proceeding initiated by the complainant is not maintainable on the ground that even without complying the condition namely clause-4 of the agreement duly entered on 6.1.2000 between the complainant and the opposite party which reads as follows:

        “ The party of the second part shall deliver the possession of the concerned portion to the party of the first part only after receipt of full and final settlement of the amounts due to them. “

The opposite party further submit that even clause 5 of the aforesaid agreement read as follows:

        “If the payment are not duly and promptly paid by the party of the first part, the party of the 2^nd part shall not be liable to deliver the flat on time.   Hence time shall not be the essence of the contract.

5.     The opposite party further relies upon another covenant of the aforesaid agreement namely clause-6 which reads as follows:

        Any extra works executed by the party of the second part in the  flat on the request of the party of the first part herein, the cost for the same shall be payable in advance, on demand, on receipt of the estimate for the same from the party of the first part herein.  

The opposite party further submits that even the complainant in clause-10 of the afore said agreement has agreed as follows:

The vendor only has the right to the construction activities in the undivided share signed by the said vendor” .  The opposite party further submits that even in the aforesaid agreement clause 12 specifically reads as follows:

The party of the second part hereby assures the party of the first part that the construction of the flat shall be completed within a period of 12 months from the date of approval from the competent authority.   The opposite party further submit that even clause-14 of the agreement reads as follows: “The party of the first part hereby states that the inner modifications shall be altered or changed according to the convenience and requirement of the party of the first part.  However if any extra cost is incurred while doing so the same shall be borne by the party of the first part.”    The opposite party further submit that  when factually the terms of the contract have been suitably complied with, the complainant without justifiable reasons withheld the payment and when the opposite party insisted for settling the account against the complainant, the present approach is made without any legal basis and as such the proceedings initiated by the complainant before this forum is not legally maintainable. 

6.     The opposite party further submits that only on account of the compliance of the requirement of the complainant and the other flat purchasers the necessity arose for regularization and even the terms of the contract clearly reveal that the possession will be given to the complainant and other flat purchasers only subject to settlement of the account committed by the complainant with the opposite party in full and final and even the aspect of handing over of possession to the complainant is subject to the regularization of the plan by the authority concerned in accordance with law and in the same circumstances to circumvent the terms of contract dated 17.2.2000 and also to prevent the opposite party to realize a legitimate amount due and liable to be paid by the complainant along with other flat purchasers to the extent of  Rs.9 lakhs under the guise of regularization.  The present course of action initiated by the complainant is to deprive the lawful recovery and entitlement of the lawful claim of the opposite party as per the terms of the agreement dated 17.2.2000 and as such the course of action initiated improperly instead of suit for accounts is beyond the purview and jurisdiction of this forum.   Hence there is no deficiency in service on the part of the opposite party and therefore this complaint is liable to be dismissed.

7.      In order to prove the averments of the complaint, the complainant had filed proof affidavit as her evidence and documents Ex.A1 to Ex.A14 marked.  Proof affidavit of opposite party  filed and Ex.B1 & Ex.B2 marked on the side of the opposite party and also Ex.C1 and Ex.C2 marked.

8.   The points for the consideration is:  

1. Whether the complainant is entitled to a sum of Rs.2,98,775/- towards the cost of rectifying the defects and damages in B Schedule as prayed for ?

 

2. Whether the complainant is entitled to a sum of Rs.1,00,000/- towards mental agony for deficiency of service with cost as prayed for ?

 

9. POINTS 1 & 2 :     

Both parties filed their respective written arguments after duly filing proof affidavit along with their documents.    The opposite party advanced oral arguments also.   The complainant counsel not turned up  to advance any oral arguments.  Hence it is treated that complainant  has no oral arguments.   The complainant pleaded in the complaint and stated in the written arguments that the complainant and six others entered into an agreement for construction of flats with the opposite party builder with specific clauses on 6.1.2000 as per Ex.A1 is admitted.    The complainant further pleaded and contended  in the written arguments that the construction work executed by the opposite party was most unsatisfactory;  cracks developed in the walls of all the Flats including parapet walls and stair case room within two months.   Similarly the  marbles used for the flooring was of cheap quality as there are cracks and holes in the marbles and they are not laid properly.    Electrical fittings and the taps used in the buildings are of sub-standard, switches were broken and are not functioning.   The window grills are  smaller than the window frames as a result there are gaps all around the grills and the grills are not properly fixed.  Per contra the learned counsel for the opposite party contended that all the construction works carried out are in a proper manner with quality materials.   The allegation of substandard material used has not been proved by the complainant in any manner.  The allegation that instead of ceramic tiles low quality marbles  used are absolutely false.  It is only with the concurrence of the complainant  quality marbles were used.  The leakage, seepage and all other alleged deficiency with regard to windows, doors, etc are absolutely false.   The Advocate Commissioner also inspected the property and filed his report stating that “ At the time of the inspection the owner of the flat i.e. S.Ramamoorthi was there.  The oral submission of S.Ramamoorthi is that he made all alternations, additions, improvements and modifications, but I cannot find any air cracks or any patch works” proves that the alleged deficiency is imaginary. 

10.    Further the complainant pleaded in the complaint and contended in the written arguments that there is no sanctioned plan for the building.  The CMDA has sanctioned a Plan for construction of a single building of 9 flats on an extent of 4800 sq. ft., while the opposite party has constructed two buildings of flats  and the CMDA authorities state that the building is an unauthorized one and the building has been listed as one of the building having violation in the notification published in “Dina Bhoomi” and called upon to rectify the violation within one month as per Ex.A4.  The complainant issued two telegrams and two Advocate Notices   to the opposite party to get regularization.  Since there is no response,  the complainant engaged a surveyor and had a plan drawn and have applied for regularization after paying a sum of Rs.11,080/- towards initial charge.   But on a careful perusal of the complaint it is seen that  “the complainant had stated that as the actual construction of the flats differed from the plan given by the opposite party as sanctioned plan, the complainant and other owners began to feel suspicious.   Therefore the complainant and other verified at the CMDA office.   To their surprise and shock it was found out that the CMDA has sanctioned for construction of single building of 9 dwelling units on a land of total extent of 4800 sq. ft.   whereas the plan given to the complainant and other owners as sanctioned plan shows two Buildings on an area of 4800 sq. ft, one in the front with two dwelling units and the other in the rear with 9 dwelling units.  The plan given by the opposite party to the complainant and other owners, as sanctioned plan shows that the construction of 9 dwelling units on an area of 3854 sq. ft.  So the sanctioned plan is different from the plan given by the opposite party.   The complainant states that the plan given to im and others is a forged one and not the true sanctioned plan.   The complainant therefore submits that there is no sanctioned plan for the construction of 9 dwelling units on an area of 3854 sq. ft.”   Similarly the opposite party obtained the approved plan for 9 single bed room dwelling units but constructed the flat totally against the  approved plan; amounts to deviation for that alone steps for regularization was ordered.  The learned counsel for the opposite party contended that for such regularization the opposite party paid a sum of Rs.50,000/-   But on a careful perusal of the records the opposite party has not produced any document to prove the said payment towards regularization charges.   Equally no orders of regularization obtained and filed.  Further the opposite party contended that the complainant purchased the flat only, after seeing the approved plan for 9 dwelling houses; the complainant has not questioned plan and construction till the possession was delivered.    Having obtaining possession  without any objection after due inspection  raising such questions and claiming approval giving different colour as deficiency of service is unsustainable.  Much less steps for regularization taken.

11.    Further the complainant pleaded and contended in the written arguments that the opposite party agreed to provide 20% of the plinth area as common area.    The common area now existing works out only 9%.  Hence there is deficit in the common area provided for the building.    But the complainant miserably failed to give the measurement to prove the alleged 20% and 9%.   On careful perusal of the report of the Advocate  Commissioner it is seen that  “ The total plinth area as per the Engineer it comes to a total of 908 sq. ft.  In this flat also 20% of plinth area as per agreement is common area.  Thus the owners Mr. S.Ramamurthi occupies the 862 sq. ft. the Engineers calculation is attached herewith proves that there is no such deficiency.   The learned counsel for the opposite party contended that instead of 862 sq. ft he had constructed 908 sq. ft  and handed over the possession to the complainant resulting some deviation and shortage of common area.  The complainant has not paid any amount towards such difference in area of construction paying for 862 sq. ft. and occupying 908 sq. ft. and raising deficiency without payment is unsustainable.     

12.    Further the complainant pleaded and contended in the written arguments that the opposite party agreed to provide exclusive car parking area to the complainant but no car parking area provided.  The only space available in the building is the eastern side setback which is only  8 ft in breadth even though the opposite party has agreed to provide 10 ft width.   In this space cars cannot be parked or taken out.  If cars are parked there shall be no sufficient space to park two wheelers and for ingress and egress.  The learned counsel for the opposite party contended that 10 ft. set back was available for suitable car parking and all the flat owners are using. The allegation of two wheeler parking and other amenities never arise.    The Advocate Commissioner also inspected the property and filed his report that no provision of car parking in the eastern side set back of 10 ft.   No separate car parking is available except the 10 ft set back.   The complainant at the time of construction itself knowing fully well about the carpet area and set back everything.   But on a careful perusal of the agreement it is seen that separate car parking has to be provided to the complainant and an amount of Rs.50,000/- received by the opposite party towards the car parking; since the opposite party has not provided any separate car parking except the set back area on the eastern side it amounts to deficiency of service and the opposite party is liable to pay compensation.  

13.    Further the complainant pleaded and contended in the written arguments that the complainant took the key of the flats for the purpose of inspecting the flats and make suggestion and did not return it and entered into possession is totally false.   But it is admitted that the complainant took possession of the property as per agreement Ex.A1 without settling the account in this case.    As per Ex.B2 total cost price of the flat is Rs.15,33,325/-.  The complainant paid a sum of Rs.12,00,000/-the balance amount is Rs.3,33,325/-.   The complainant executed a letter  stating that  a sum of Rs.3,00,000/- has been adjusted.  The complainant has not produced any document to prove that he has paid the entire amount.   On the other hand the opposite party has not claimed any amount towards balance sale consideration.   Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite party  shall pay a sum of Rs.25,000/- towards deficiency in car parking area and a sum of Rs.20,000/- towards mental agony and cost of Rs.5,000/- and the points are answered accordingly.

        In the result, the complaint is allowed in part.  The opposite party is directed to pay a sum of Rs.25,000/- (Rupees Twenty five thousand only) towards deficiency in car parking area and a sum of Rs.20,000/- (Rupees Twenty thousand only) towards mental agony and cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.

  The above  amount shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.       

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  1^st  day  of  September 2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

Ex.A1- 15.1.2000  - Copy of Agreement between complainant and the

                              opposite party.

Ex.A2- 4.4.2001    - Copy of letter by complainant and others.

Ex.A3- 15.8.2001  - Copy of publication in Dina Bhoomi.

Ex.A4- 10.9.2001 - Copy of Notice by counsel for complainant to opposite party

                               With Ack. card.

Ex.A5- 6.11.2001  - Copy of notice with Ack. Card.

Ex.A6- 6.1.2000    - Copy of receipt for Rs.2,00,000/-

Ex.A7- 6.1.2000    - Copy of receipt for Rs.2,00,000/-

Ex.A8- 17.9.2000  - Copy of receipt for Rs.2,00,000/-

Ex.A9- 12.10.2000         - Copy of receipt for Rs.1,00,000/-

Ex.A10- 17.11.2000-Copy of receipt for Rs.1,00,000/-

Ex.A11- 9.1.2001  - Copy of receipt for Rs.1,00,000/-

Ex.A12- 3.2.2001  - Copy of receipt for Rs.2,00,000/-

Ex.A13- 30.11.2001-Copy of bill by CMDA for payment of initial of

                              regularization fee of Rs.11080/-

Ex.A14-       -       - Copy of Ack. by CMDA.

 

Opposite party’s side document: -   

Ex.B1- 10.11.1999         - Copy of Joint Venture cum sale agreement, between

                              Opposite party with land owner.

 

Ex.B2-         -       - Copy of Statement of Account with receipts.

 

Court’s Exhibits: -

 

Ex.C1-         -       -  Advocate Commissioner’s Report

Ex.C2- 3.1.2005   -  Notice to the party with plan.

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.