Date of Filing       :  12.07.2021

                                                                                     Date of Disposal  :  23.03.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

KANCHIPURAM DISTRICT @ CHENGALPATTU

PRESENT: THIRU.   U.KASIPANDIAN, B.A., M.L.,    .….  PRESIDENT

                   THIRU. M.JAWAHAR, B.A. L.L.M.,           …..  MEMBER-I  

CC.No.49/2021

THIS THURSDAY THE 23^TH DAY OF MARCH 2023

Josephine Joyce Premila Victor,

W/o Nelson Sagayaraj,

I-503, Block I, Palm Riviera,

92, Thirumudivakkam,

Kancheepuram – 600 132.           

The complainant Rep. through Power of Attorney by

Rajeev Babu R,

S/o. N. Ramar,

E-201, Block E, Palm Riviera,

92,Thirumudivakkam,

Kancheepuram – 600 132.                                                            ::          Complainant.

//Vs.//

AmarPrakaash Developers Pvt. Ltd.,

Rep. by its Managing Director,

Having registered office at

No.42, Rajendra Prasad Road,

Nehru Nagar, Chrompet Chennai – 600 044.               

Currently having office at

1^st Floor, Club Aurum Building,

#92, Thirumudivakkam Main Road,

Thirumudivakkam, Chennai – 600 132.

(Opp. To Jain Public School)                                             ::          Opposite party.                                                          

Counsel for the complainant                              :  M/s. N. Sivakumar, Advocates.

Counsel for the opposite party                          :  Mr. A.M. Rajesh, Advocate.

This complaint having come up for final hearing before us on 20.03.2023, in the presence of M/s. N. Sivakumar, Advocates, for the complainant, Mr. A.M. Rajesh, Advocates for the opposite party and having perused the documents and evidences of both side and heard oral argument of both, this Commission delivered the following:

ORDER

PRONOUNCED BY THIRU. U.KASIPANDIAN, PRESIDENT.

1.       This complaint is filed by the complainant under Sec.35 of the Consumer Protection Act, 2019, against the opposite party seeking directions, directing the opposite party to refund a sum of Rs.2,00,000/- collected towards clubhouse membership from the complainant along with interest of 12% p.a. from July, 2015 till the date of actual refund by the opposite party; to refund a sum of Rs.30,000/- collected towards the gas pipeline from the complainant along with interest of 12% p.a. from July, 2015 till the date of actual refund by the opposite party ; to refund a sum of Rs.27,000/- collected towards solar energy plants from the complainant along with interest of 12% p.a. from 18.09.2017 till the date of actual refund by the opposite party; to refund a sum of Rs.3,73,500/- as excess cost of construction collected from the complainant along with interest of 12% p.a. from July, 2015 till the date of actual refund by the opposite party from the complainant  to pay Rs.10,00,000/- towards the compensation for deficiency in service and for unfair trade practice and to pay Rs.20,000/- towards cost of the complaint to the complainant.

2.         Brief averments  in the complaint is as follows:-

                 It is averred that the complainant is the owner of Flat No.I-503 in the Township called Veneziam-Palm Riviera promoted and developed by the opposite party. The complainant is represented by the Power Agent Rajeev Babu R.The complainant had purchased their apartment from the opposite party on the basis of the advertisements and presentations made by them. The opposite party had advertised extensively regarding their new residential apartment complex in leading newspapers like The Hindu, Times of India, Daily Thanthi and Dinakaran since 2012. The said advertisements claimed that the projects of the opposite party  would have a Health Spa, Jungle Track, Meditation centre, Mini-theatre, Car Spa, Laundromat, Golf-putting, five meters of green space, a Kid’s centre, Arts School, Evening Bazaar, Women’s Club, Hospital with Ambulance, Commercial complex, Riverview Restaurant, Shopping Mall, Business Hotel, etc., The opposite party also represented that their apartments had a higher resale value compared to other projects in vicinity and the appreciation would be 80-120% of the cost within three years. These advertisements attracted the complainants. It is also averred that the opposite party had constructed around 10 model houses to physically show how the apartments would look upon completion. There was also an interview of the Managing Director of the opposite party in “The Business Line” wherein they misrepresented that quality, commitment, clarity and transparency or their four pillars. The residential project comprised of 14 blocks with 7 floors each. It was represented that the complex was inspired by the City of Venice.

            It is further averred that the complainant had signed construction agreement dated 13.04.2018 with the opposite party. As per clause 15 of the construction agreement, the delivery of possession must be made by July 2015 but the complainant was actually handed over possession on 13.04.2018 without any amenities as stated in the complaint. As per the construction agreement the complainant had paid Rs.2,00,000/- towards clubhouse membership. As per clause 56 of the construction agreement, the clubhouse membership was for a period of 15 years. As per clause 57, the complainant should pay usage charges in accordance with usage and services availed. Some of the amenities mentioned under clubhouse membership agreement are garbage chutes, telephone exchange, gas, RO system, 24/7 power backup, water bodies, 24/7 surveillance video-door phone. These amenities have not been provided till date. As per email dated 27.05.2017 of the opposite party, the allottee should have to obtain a no due certificate, sign maintenance agreement, sign clubhouse membership agreement, enroll in the owners’ association, consent for utilization of corpus fund towards creation of solar power plant and water heater. The said email also stated that the clubhouse would be functional from November 2017. The complainant signed the clubhouse agreement on 04.02.2018. The complainant was also constrained to sign a maintenance agreement with Amarprakash Property Management Services Pvt. Ltd., Till date, the solar water heaters or panels had not been installed. The opposite party had been promising to address the issues of the complainant. A meeting was held on 01.02.2020 with the Managing Director of opposite party, but not yet resolved. The opposite party had mortgaged the clubhouse with State Bank of India. There was a default and the State Bank of India proceeded to auction the property. It is further averred that now the opposite party had reduced the size of the clubhouse and the complainant realized that the opposite party has deceived the complainant by misrepresentation about the nature of the project. The complainant had paid a premium rate to their apartments. The opposite party has collected Rs.30,000/- per apartment towards the cost of reticulated gas supply but it has not been provided.

            It is further averred that the cost of construction per sq.ft in the Royal Castle another project promoted by opposite party is Rs.3,338/-. But, the opposite party has charged Rs.3,711/- per sq.ft from the complainant. In this regard the complainant had paid a sum of Rs.3,73,500/- as premium price for a 1000 sq.ft flat. The opposite party had collected money towards all the amenities in the clubhouse, gas pipeline, and solar energy power plant, but, has not provided those amenities. The above said practices of the opposite party squarely amount to unfair trade practice under the Consumer Protection Act. As a whole, the opposite party have collected a sum of Rs.6,00,500/- from the complainant, but had not delivered possession as agreed or provided amenities mentioned in the clubhouse membership agreement.  Therefore, it is prayed that the present complaint may be allowed.

3. The brief contention of written version of the opposite party is as follows:-

It is averred that the complaint regarding advertisements are all matter of record. Hence the opposite party is not dealing with the allegation regarding advertisements. It is admitted that the complainant has booked Flat No.I-503 on 22.05.2013. The built-up area of the said flat is 1000 sq.ft. The rate the cost of construction charged was @ of Rs.3,711/-. UDS allotted to complainant is 390 sq.ft. and the land value per sq.ft. was Rs.1000/-. The land value had increased three-fold. Therefore, the allegation that there has not any appreciation in the property value as projected by the complainant is untenable. It is further averred that the opposite party had constructed as per the specification in terms of the construction agreement and there has been no deviation. It is further averred that the opposite party has constructed and provided Venice type of island, apartments connecting bridges between blocks. It is also averred that the balance work will be completed within a few months. The delay in delivery of possession was due to CMDA and also due to heavy rain in December 2015 in addition to 2016 cyclone. It is also averred that on getting the revised approval dated 30.12.2015

from CMDA, the opposite party had started the construction of Clubhouse No. 1 & 2 and also completed the construction on 31.05.2017. A partial completion certificate dated 18.12.2018 was also obtained from CMDA. In the meantime, there was manifold increase in the material cost, cement cost, etc., The opposite party admit that the clubhouse membership was for a period of 15 years from the date of operation. At the beginning, the cost of Clubhouse membership was Rs.2,00,000/- and now it is increased to Rs.3,00,000/-. In view of the pandemic, the clubhouse work was getting delayed from being completed.

It is further averred that the complainant did not make the payment due under the agreement in terms of the agreement and there was delay in stage-wise payment. The complainant cannot seek any refund towards excess cost of construction, collected as per the terms of the construction agreement. The opposite party has already installed gas meter, gas pipeline and the related infrastructure in all the apartments. The opposite party cannot be held responsible for non-supplying of piped gas. It is further averred that if the complainant is not interested in the clubhouse membership, they can transfer the same to anyone with due intimation to the opposite party. There is no defect in the solar heater and solar panels which have been installed. If the complainant had any grievance on the working of the solar heater panel, they are free to take action against the supplier/installer. It is further averred that the complaint is barred by limitation. Hence, it is prayed that the complaint may be dismissed with cost.

4.         In order to prove the case, proof affidavits have been filed by both sides as their evidence and Ex.A1 to Ex.A15 were marked.  No documents on the side of the opposite party. Written argument of both sides filed and also heard oral argument.

5.         At this juncture, the point for consideration before this Commission are:-

1. Whether the complaint is maintainable?
2. Whether there is any deficiency of service on the part of the opposite party?
3. Whether the opposite party indulged any unfair trade practice?
4. Whether the delay in delivery was due to the acts beyond the control of the opposite party?
5. Whether there was any delay in the payments made by the complainant?
6. Whether the opposite party has collected any excess payments?
7. Whether the complainant is entitled to the relief sought for?
8. To what other reliefs the complainant is entitled to?

6.         Point No.1 :-             The complainant has been residing within the territorial limits of this commission. The opposite party has also been carrying on business within the territorial limits of this commission. Therefore, entire cause of action has arisen within the territorial limits of this commission. The consideration involved in this complaint is a sum of Rs.16,50,500/- which is well below the pecuniary limits of this commission. The complainant was handed over delivery of possession on 13.04.2018. Therefore, the complaint ought to have been filed on or before 14.04.2020. But in the instant case, the opposite party admittedly had not completed the amenities agreed to provide in terms of the construction agreement (Ex-A5) as well as the clubhouse membership agreement (Ex-A7). The opposite party in para 5 of their written version admitted that in the month of May 2021, there was a body-blow to the opposite party due to the lockdown imposed. In written version, the opposite party pleaded that in a few months time, normalcy will be restored and the balance work will be proceed on the track. The written version was signed and verified on 04.10.2021. The complainant’s counsel further submitted that in Sameer Dewan Vs Unitech Limited 2018, SCC Online, NCDRC 235, the Hon’ble National Consumer Disputes Redressal Commission has held that when the builder has promised delivery of possession and has not delivered, then the same is a continuing cause of action for the complainant. It was further held that failure to deliver the infrastructure and amenities promised in the construction agreement is a continuing and recurring cause of action and the complaint is not barred by limitation. In the instant case, the opposite party admittedly, in para 5 of the written version agreed to proceed with balance work on track in Written Version filed on 4.10.2021. Hence the complaint is not time barred, but filed within the time limit prescribed by the Act. Therefore, the complainant is a consumer and the complaint is maintainable. 

7.         Point No.2 to 8:-                  Heard both the sides. It is admitted fact that the opposite party had made exhaustive advertisements about the facilities and amenities to be provided in their projects, Palm Riviera, Chennai’s Venice. The complainant and the opposite party had entered into a construction agreement dated 21.06.2014 and as per clause 15 of the said construction agreement (Ex-A5), the flat should have been delivered by July. The opposite party has not denied that possession was delivered on 13.04.2018. On the other hand the Opposite party, in para 6 of their Written Version had admitted that the CMDA approval was obtained only on 30.12.2015. Therefore, there was delay in delivery of possession.

8.         It is also the admitted fact that the opposite party had collected a sum of 2 lakhs towards Clubhouse Membership. The opposite party had not denied the allegation of the complainant that many of the amenities promised to be provided under the clubhouse agreement has not been provided. On the other hand, in para 9 of the written version, the opposite party contended that in view of the pandemic, the clubhouse work was getting delayed from being completed. The opposite party further contended that the owners of Palm Riviera where the complainant’s apartment is also situated have been permitted to make use of the club amenities and facilities in the project “Royal Castle” which also had been developed by this opposite party. There is no merit in the said contention of the opposite party, when the opposite party admittedly has not completed the construction of clubhouse. Therefore, the complainant is entitled to refund of the Clubhouse Membership fees.

9.         It is the case of the complainant that there was a delay of two years in handing over the possession. In response to this allegation of the complainant, the opposite party contended in para 5-7 of the written version, that due to COVID issue, many of the workers have left for their native place and also due to the lockdown imposed once again in the month of May 2021. These are the two major reasons attributed to the delay which is beyond their control. The opposite party also contended that the CMDA took two years to approve the plan, that is till 30.12.2015.. Such contention of the opposite party that the CMDA took two years to approve the plan cannot be accepted. The opposite party should not have promised the complainant to deliver possession without obtaining approval from the CMDA. In the instant case, the opposite party in order to promote and increase their sales adopted unfair methods and deceptive practices by falsely representing that they could deliver the possession within two years from the date of execution of the agreement, thereby, misled the complainant/consumer.        Further, another contention of the opposite party that due to COVID issue, many of their workers had left for their native place and the 2^nd lockdown imposed in the month of May 2021 has also played major role in the delayed delivery of possession is also unacceptable. Admittedly in the instant case, the construction agreement was executed on 13.04.2018 with a promise to deliver the possession by April 2015. Therefore the opposite party cannot take shelter under COVID-19 pandemic which started only after 26.03.2020. Even the opposite party cannot take advantage of the flash flood occurred in December 2015 or 2016 cyclone after promising to deliver possession by April 2015. Therefore, the complainant is entitled to compensation for the delay.

10.       It is the case of the complainant that the opposite party has collected a sum of Rs.30,000/- towards the cost of reticulated gas supply. The opposite party on the other hand, contended that the reticulated gas supply infrastructure has already been installed in all places of the apartment and it is now up to the individuals or association to approach the gas service providers to get work of piped gas completed. In para 13 of the written version, it is admitted by the opposite party that to get the gas supply, the complainant should approach the gas service provider. If the opposite party has completed the infrastructure for reticulated gas supply, the opposite party should have also tested the supply through a gas service provider. Only after due test and due, trial the quality of gas supply system can be ascertained. Since the opposite party has not completed the infrastructure for reticulated gas supply, it has not furnished the details of gas agency/service provider. Therefore, there is no merit in the contention of the opposite party that it has installed reticulated gas supply system and hence the complainant is entitled to refund of the sum paid to the opposite party for providing reticulated gas supply together with interest from April 2015.

11.       It is also the case of the complainant that the opposite party has collected a sum of Rs.27,000/- per two bedroom flats, towards the construction of a solar power generation plant and a rooftop solar water heater. The opposite party, in para 15 of their Written Version admitted that they have collected Rs.20,000/- in some cases and 27,000 in some cases towards solar planet/heater. The opposite party further contended that the water heater and solar plant had been put up in each of the blocks. It is further contended by the opposite party that if the complainant had any grievance in the working of the solar heater/panel, the complainant has to take action against the supplier/installer. This contention of the opposite party cannot be accepted for the reason that if the opposite party has installed the solar heater and solar panels as stated in para 15 of the written version, the opposite party should have furnished the details of the supplier/installer, the date of purchase and installation of each solar heater/panel and the details of corresponding warranty/guaranty to the complainant. Since, the opposite party has not put up the solar panel/heater it has not furnished the details of the supplier/installer. Such act of deliberate withholding of relevant information about the supplier/installer of solar heater/panel to the complainant amounts to deficiency in service under section 2 (11) of Consumer Protection Act, 2019. Therefore, the complainant is entitled to the refund of the sum paid towards solar heater and panels.

12.       It is the case of the complainant that the cost of construction per sq.ft in “Royal Castle” was Rs.3,338/- whereas the complainant has paid Rs.3,711/- per sq.ft within the same project towards the cost of construction. In this way, the opposite party has collected Rs.373/- per sq.ft from the complainant in excess of actual cost. The total built-up area of the complainant’s flat is admittedly 1000 sq.ft. But the opposite party contended that the complainant’s have accepted the terms and conditions of the opposite party at the time of executing Construction Agreement, now cannot question the same. At the same time, the opposite party has not denied the averment that they have collected a sum of Rs.3,73,500/- towards premium payment in excess of price charged to other home buyers. The opposite party has not delivered possession of the flat as agreed. If the opposite party has delivered possession of the flat as per the terms of the agreement, the complainant shall not claim the refund of premium amount. In the instant case, the opposite party admittedly delivered the possession after two years. Therefore, the complainant is entitled to refund of premium amount or else compensation for delayed delivery. The complainant further contended that the National Consumer Disputes Redressal Commission in Sameer Dewan vs Unitech Limited 2018, SCC Online, NCDRC 235, has held that when the builder has promised delivery of possession and has not delivered, then the same is a continuing cause of action for the complainants. The Opposite party, in para 10 of the Written Version also contended that the complainant did not make payment dues as per terms of the agreement. But, the opposite party has not filed any details such as due dates and date of payments made by the complainant. In the absence of any specific details, such contentions are evasive and unreliable. Therefore, there is delay in delivery of possession, even after collecting a premium price in excess of the cost paid by certain other home buyers, amounts to deficiency and the complainant is entitled to refund of premium or excess cost paid by him.

13.       In para 4 of the Written version, the opposite party contended that the land value has increased from Rs.1000/- to Rs.3200/- per Square feet. Again the opposite party did not furnish any documentary evidence to establish the said contention.  Every allegation should be decided on the basis of affidavit and documentary evidence placed on record. The opposite party has not placed any documentary evidence to establish the said contention.

14.       It is also the case of the complainant that the opposite party had deceived the complainant by misrepresentation and the complainant after paying a premium price has not been delivered possession as agreed by the opposite party. The opposite party has not provided any amenities as agreed. Such act of the opposite party squarely amounts to unfair trade practice and because of such unfair and deficient acts of the opposite party, the complainant suffered both mentally and financially and entitled for damages. Thus, 2-8 are decided in favor of the complainant.  

15.       In the result, this complaint is partly allowed. The opposite party is directed

1. To refund a sum of Rs.2,00,000/- (Rupees Two Lakh only) collected towards clubhouse membership from the complainants along with interest @ 12% p.a. from April, 2015 till the date of actual refund by the opposite party;
2. To refund a sum of Rs.30,000/- (Rupees Thirty Thousand only)  collected towards the gas pipeline from the complainants along with interest @ 12% p.a. from April, 2015 till the date of actual refund by the opposite party;
3. To refund a sum of Rs.27,000/- (Rupees Twenty Seven Thousand only)  collected towards Solar Energy Plants from the complainants along with interest @ 12% p.a. from 18.09.2017 till the date of actual refund by the opposite party;
4. To refund the excess cost of construction of Rs.3,73,500/- (Rupees Three Lakh Seventy Three Thousand Five Hundred only) along with interest @ 12% p.a. from 18.09.2017 till the date of actual refund by the opposite party;
5. To pay a sum of Rs.1,00,000/- (Rupees One Lakh only) towards undue hardship and injury both physical and mental caused to the complainants due to the acts of omission / commission on the part of the opposite party;
6. To pay a sum of Rs.20,000/- (Rupees Twenty Thousand only)  towards cost of proceedings to the complainant within two months from the date of receipt of copy of this order.

Failing which, the above said amounts (Rs.1,00,000/- + 20,000/- = 1,20,000/-) shall carry interest @ 12% p.a. from the date of order till the date of realization.

Dictated by the President to the Steno-typist, transcribed and computerized by her, corrected by the President and pronounced by us in the open Commission on this 23^th day of March 2023.

    Sd/-                                                                                                               Sd/-

MEMBER-I                                                                                                PRESIDENT

List of document(s) filed by the complainant(s):-

List of documents filed by the opposite party:-

-Nil-

    Sd/-                                                                                                               Sd/-

MEMBER-I                                                                                                PRESIDENT