Tamil Nadu

North Chennai

CC/21/2017

A.Premalatha W/o.Mr.S.Baskar - Complainant(s)

Versus

Antony Property Pvt Ltd Rep by its Asst General Manager - Opp.Party(s)

M.s.Associates

20 Aug 2018

ORDER

                                                            Complaint presented on:  14.02.2017

                                                                Order pronounced on:  20.08.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

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

 

PRESENT:  TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL PRESIDENT

 

THIRU.D. BABU VARADHARAJAN B.Sc., B.L., :   MEMBER – I

 

MONDAY  THE 20^th   DAY OF AUGUST 2018

 

C.C.NO.21/2017

 

 

A.Premalatha wife of Mr.S.Baskar,

No.39, Old No.15/122, 15^th Block,

Thirunagar, Villivakkam,

Chennai – 600 049.

 

                                                                                    ….. Complainant

..Vs..

 

Antony Property Pvt Ltd.,

Rep. by its Assistant General Manager,

No.9/20, AA Block, 3^rd Street,

Anna Nagar, Chennai – 600 040.

.....Opposite Party

Date of complaint                                 : 17.02.2017

Counsel for Complainant                      : M.S. Associates

 

Counsel for   Opposite Party                    : M/s. K.R. Ashwin Kumar

 

 

 

 

 

 

O R D E R

 

BY PRESIDENT TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL

          This complaint is filed by the complainant to rectify the defects and hand over possession and pay compensation for a sum of Rs.2,20,990/- towards arrears of rent with interest the rate of 18% per annum and Rs.5,00,000/- deficiency and mental agony Rs. 25,000/- towards the cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

The complainant had booked No C2 with super built up 902 sq.ft in the ground floor constructed inclusive of common area together with 518 sq.ft undivided share out of 18672 sq.ft in S.No.391/3, 391/4, 391/11 (part) and 391/12 (part), in plot No.1 to 10 Karanaipuduchery Village, Urapakkam, Chengelpattu Taluk,  Kancheepuram District together with exclusive car park (here after referred to as said flat) and entered sale cum construction agreement dated on 20.08.2012 with opposite party and with owners R.Dhanasekaran and Mrs. Thulasiammal  for purchase and development of  the flat. The opposite party agreed for the complainant   submit that as per clause 1 of the Agreement a sum  of Rs.20,07,088/- was fixed as total consideration as Lumpsum contract cost details of which are extracted here under.

1. Land Cost                          : Rs. 4,14,400/-
2. Construction cost               : Rs.12,08,295/-
3. Other charges                    : Rs.1,35,300/-
4. Covered Car Park             : Rs.1,50,000/-
5. Registration expenses        : Rs.38,152/-
6. Service Tax                        : Rs.60,938
   •  

                           Total Amount           Rs.20,07,088

                                                  

The complainant paid a sum of Rs.4,01,424/- as an advance for sale cum construction agreement and  he had paid a sum of Rs.4,14,400/- as sale consideration towards  the undivided share. The owners have executed the sale deed dated 15.04.2013 and registered sale deed bearing No.5131 of 2013 in the office of  sub Registrar Guduvanchery in favour of the complainant. As on date the complainant had made the part payment Rs.18,13,298/- towards the construction agreement undivided share. As per the agreement in clause 18 the opposite party had agreed to complete the construction and hand over the possession of the flat within 18 months ( on or before 19.02.2014) from the date of the execution the agreement  failing which he had agreed to pay Rs.6,314/- per month towards the delayed period of completion work as per clause 40. The opposite party had agreed to furnish the flat for value of Rs.54,120/- failing which he is a liable to refund the amount to the complainant despite lapse of  35 months the opposite party wilfully failed to complete and hand over the flat,  in spite of the complainant’s request to hand over the flat and willing to pay the balance meagre amount on handing over possession of the flat. The complainant also pointed out the several defects in the construction, as the opposite party  using  inferior materials  he had failed the rectify those defects also. Having paid 90% of the money and believing possession will be handed over, the complaint had fixed house warming ceremony  on 10.12.2014  and postponed  to several other dates thereby complaint  is subject to immense mental agony and suffering and disgrace  among relative and friends.  The Complainant had availed loan from LIC and to compel to pay monthly EMI without occupying the flat. Therefore, the complaint is filed to rectify the defects and hand over possession and pay compensation for a sum of Rs.2,20,990/- toward arrears of rent with interest the rate of 18% per annum and Rs.5,00,000/- deficiency and mental agony Rs. 25,000/- towards the costs and for the further orders as deem fit.

2. WRITTEN VERSION OF THE  OPPOSITE PARTY IN BRIEF:

          The opposite party denies the averments in the complaint except those that are admitted. The opposite party admits booking one flat C2 measuring 902 sq ft. With 518 sq ft  UDS along with exclusive car park the agreement dated 20.08.2012 and total consideration of Rs.20,07,088/- Out of which 4,14,400/- is to be paid  the balance amount of Rs.16,05,354.-  is to be paid on completion of certain work and there is  a provision for compensation for delaying handing over possession by the builder as per the agreement.  The opposite party the complainant shall remit the sum on demand without any default, if delayed it will result the complainant being liable to pay the builder (opposite party) such defaulted sum at the rate 24% per annum. Para 3 of the agreement stipulated that the balance consideration of Rs.16,05,670/- shall be paid in 5 instalment by the opposite party.  But she has not made timely payment of such instalments  and delayed payments were made only after repeated requests. The first instalments Rs.10,03,544/- which is to be paid on or before 04.09.2012 was remitted after a delay of  nearly five months. As per the agreement the complainant is liable to pay Rs.1,00,000/- for the delayed payment for this delayed payment allowed. Likewise all five instalments were belatedly paid the amount of compensation. The amount of compensation payable according to the terms of the agreement will vastly over-weigh the amount of  Rs.2,20,990/- delay compensation that the complainant has claimed in the present complaint. On calculation, the amount which the complainant is liable to pay adds up to about Rs.3,00,000/. The defects pointed out by the complainant is a result censoring weathering, normal wear and tear covered under clause 36 of the agreement. The complainant cannot be allowed to rely on the pictographical representation of unfinished work in places that are not covered in the sale agreement. The opposite party assured to rectify of the complainant irrespective of the same being normal wear and tear and weathering. The opposite party agreed to furnish the flat for value of Rs.54,120/- and will furnish the flat of the said value on agreeing to remit full and final payment including sums that accrue 24% interst on delayed remittance. Complaint is filed only to harass the builder and extract  money, The flat is ready in all vital aspects and only few minor works are left to be finished and assures that the same will be completed within a month or two. The opposite party remitted payment TNEB for want of the electricity connection but electricity board TNEB is delaying and this opposite party is protected by clauses in the agreement in the event of the delays caused by statutory bodies. Therefore prays to dismiss the complainant and to award of sum of Rs.3,00,000/- with respect interest at the of 24% per annum of delayed remittance made by the complainant and to direct the complainant to pay a sum of Rs.2,00,000/- towards mental agony and harassment caused by the complainant to this opposite party and also for the cost. 

          3. The opposite party has not filed proof affidavit till 11.04.2018. Hence proof affidavit of opposite party was closed and opposite party also set ex-parte for non filing of proof affidavit.

4. POINTS FOR CONSIDERATION:

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

          2. Whether the complainant is entitled to any relief? If so to what extent?

 

 

5. POINT NO :1 

          The complainant booked one flat- C2 measuring 902 sq.ft. in the ground floor with 518 sq.ft. along with exclusive car park  in the opposite party’s construction at undivided share out of 18672 sq.ft in S.No.391/3, 391/4, 391/11 (part) and 391/12 (part), in plot No.1 to 10 Karanaipuduchery Village, Urapakkam, Chengelpattu Taluk,  Kancheepuram District together with exclusive car park (here after referred to as said flat) and entered into a construction agreement  with the opposite party  for  the purchase and development of the above mentioned flat as per the agreement dated 20.08.2012 in Ex.A1, and  opposite party   had agreed to construct the said flat and the owners of the land agreed to convey the undivided share,  and the total consideration is Rs.20,07,088 as per  agreement and  a sum of Rs.4,14,400/- was paid as sale  consideration towards the undivided share  and the owners have executed  a sale deed on 15.04.2013 by way of registered sale deed in Ex.A2 are admitted by the opposite party. The Payment receipt in Ex.A3 series by the complainant is not disputed. The communications through e-mail are Ex.A4 and Ex.A5 and the letter sent by the complainant with acknowledgement the Ex.A6.  These letters and e-mail contains the messages regarding request and delay in handing over the flat. Statement of bank accounts of the complainant is shown in Ex.A7. Notice sent by the complainant prior to the filing of the complaint dated   25.01.2017 is filed with acknowledgement Ex.A8. The photos showing the stage of the building and also some of the defects in the building is Ex.A9.                

         6. The contention of the complainant is that she had made the part payment of Rs.18,13,298/-towards the construction agreement and towards undivided share. The opposite party  had agreed to hand over possession within 18 months i.e. on or before 19.02.2014 from the date of execution of the agreement failing which  he had agreed to pay Rs.6,314/- per month towards  the delayed payment  as per clause 40. Further, he had also assured to furnish the flat to a value of Rs.54,120/- and  in case of non furnishing the same  the opposite party is agreed  to refund the same. But despite of the complainant’s request and after a lapse of 35 months opposite party  had not handed possession. And the defects in construction pointed out by the complainant and the usage of the inferior material by op even after the request through e-mail and letters by the complainant has not been rectified.

      7. Complainant availed LIC loan under Ex.A10 is not disputed.Ex.A11 and Ex.A14 are the reminding letters sent to the complainant and their payments and acknowledgments are Ex.A12 & Ex.A13 and Ex.A15 to Ex.A18. However it is said by the complainant that 90% of the payment was received by the opposite party and promised to pay the rest of the amount at the time of handing over possession.  Under Ex.A18 is the receipt for full and final payment made by the complainant during the pendency of the complaint. And Ex.A19 letter by the opposite party  addressed to the LIC Housing finance Ltd., confirms the final payment made by the complainant.

          8.  The opposite party  has protested in his written version that the complainant  has not paid the installments in time and belatedly paid the installments for which she has to pay 24% interest for the delayed  payment  and she has to pay Rs.1,00,000/- for the first installment delay. The alleged defects are only in the result of seasoning weathering, and normal wear and tear and the same is covered under clause 36 of the agreement and assures to rectify the same in his written version and also admits the assurance given for the furnish and fulfill the same if the complainant settles the final settlement including the settlement of 24% interest. The opposite party  also claims 3,00,000/-with respect to interest @ 24% for the delayed remittance made by the complainants and also 2 lakhs for his mental agony, harassment and for costs.

         9. The part payment paid by the complainant in five installments as scheduled is not denied by the opposite party. As per Clause18 of sale cum construction agreement the opposite party had agreed to complete the construction and hand over possession of the flat within 18 months from the date of execution of the agreement, failing which opposite party had agreed to payRs.6,314/- per month  towards the delayed period of completion as per clause 40 incorporated in the agreement  and the same is  not  denied by opposite party. So far as the defects put forth by the complainant is also accepted by op irrespective of the same being normal wear and tear and weathering. Furnishing the flat to the value of Rs.54,120/- is also not denied. As per Ex.A19, after the filing of the complaint i.e. on 26^th July 2016, a letter is sent to the Area Manager, LIC Housing Finance acknowledging the full and final settlement made by the complainant. An assurance was given by opposite party in his letter for handing over the flats in the month of October 2015 in Ex.A20 has also not been complied with.  The Payments to electricity board also paid in the name of the complainant is evident from Ex.A21. Therefore the complainant has proved her claim by way of filing documents and it also made clear that the flat was not handed over at the appropriate time.

         10. The argument advanced by the learned counsel for the complainant regarding   the rare delay in payment by the complainant is explained as not due to his personal default and that the request for releasing of the payment was not duly given in time by the opposite party and after many request by the complainant only it was given and after submitting the request the amount is only been released from the sanctioned amount.  Taking that into consideration, the reason stated by the complainant seems to be reasonable. It has also been argued on the side of the complainant that the possession has not been handed over till date. The opposite party  also has not utilized his opportunity to put forth his case and to defend it by way of filing proof affidavit by proving  documents even he differs in few points. Since possession is not handed over till date even after the final settlement it is concluded that there is deficiency in service on the part of opposite party  and the admission made by the opposite party for rectifying the defects and the fact of admission over the payment of rents, we are in view  that the complainant is entitled to get the relief as prayed for. Counter claim is not supported by and court fee, it does not deserve discussing separately.

       11. As per the contention  of the complainant  he had fixed house warming ceremony  several times and it is being postponed  because of opposite party  failed to hand over the flat and the complainant  availed the loan  and she was compelled to pay the monthly EMI  without occupying the flat. These facts have not been denied by opposite party by filing any proof affidavit to that effect on his side. Therefore it is concluded that the complainant has suffered mental agony and suffering.

         12.  Since opposite party  has received the full and final settlement , opposite party  has to rectify the defects  and hand over possession of the flat  and also to pay compensation towards arrears of rent and there is deficiency of service on the part of opposite party  for not delivering the flat  as assured and Point No.1 is answered accordingly.

13. POINT NO:2

          As concluded in point No.1, the complaint is allowed in-part and the opposite party is directed to rectify the defects pointed out by the complainant and hand over possession of the flat within 6 weeks and to pay compensation towards arrears of rent Rs.2,20,990/- and to pay an amount of Rs.1,00,000/- towards the deficiency in service and for Mental agony  besides Rs.5,000/-towards the costs of the proceedings to the complainant. The said amount shall be paid within 6 weeks from the date of order, failing which the said amounts will carry 12% interest till date of payment. 

          In the result the Complaint is partly allowed. The Opposite Party is  directed to rectify the defects pointed out by the complainant and hand over possession of the flat within 6 weeks from the date of receipt of the copy of this order  and to pay compensation towards arrears of rent Rs.2,20,990/- (Rupees two lakhs twenty thousand nine hundred and ninety only) and also to pay an amount of Rs.1,00,000/- (Rupees one lakh only) towards the deficiency in service and for Mental agony  besides Rs.5,000/- (Rupees five thousand only) towards the costs of the proceedings to the complainant.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 12% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 20^th  day of August 2018.

 

MEMBER  I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 20.08.2012                   Copy of the sale cum construction agreement

Ex.A2 dated 15.04.2013                   Copy of the Sale Deed registered as Document

                                                    No.5131/2013

 

Ex.A3 dated 30.07.2012                   Xerox copy of Payment receipts series (Nos 4)

Ex.A4 dated18.11.2014          Copy of the e-mail

Ex.A5 dated 10.10.2016                   Copy of the e-mail

Ex.A6 dated 12.10.2016                   Copy of the letter with acknowledgement card

Ex.A7 dated 23.09.2016                   Statement of account from bank

Ex.A8 dated 25.01.2017                   Notice sent by the complainant with AD

Ex.A9 dated NIL                     Photos

Ex.A10 dated 22.10.2012                 LIC housing Loan sanction letter

Ex.A11 dated 25.02.2013                 Copy of the letter dated issued by opposite party

Ex.A12 dated 28.02.2013                 Copy of LIC Housing Finance Ltd.,

Ex.A13 dated 01.03.2013                 Copy of the Receipt issued by the opposite party

Ex.A14 dated 10.05.2013                 Copy of the letter issued by opposite party

Ex.A15  dated 08.06.2013      Xerox Copy of LIC Housing Finance Ltd

Ex.A16 dated 08.06.2013                 Copy of the Receipt issued by the opposite party

Ex.A17 dated 26.07.2016                 Copy of cheque issued by the complainant

Ex.A18 dated 26.07.2016                 Copy of the Receipt issued by the opposite party

Ex.A19 dated 26.07.2016                 Letter issued by the opposite party

Ex.A20 dated 06.08.2015                 Letter issued by the opposite party

Ex.A21 dated NIL                             Xerox Copy of the online E.B payment receipt  

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

 

                                      NIL

 

                                               

MEMBER – I                                                               PRESIDENT