Tamil Nadu

South Chennai

CC/278/2005

V.Sivakumar - Complainant(s)

Versus

Anupam Foundation Ltd., - Opp.Party(s)

C.S.K.Sathish

02 Nov 2017

ORDER

                                                                        Date of Filing :   04.03.2005

                                                                        Date of Order :   02.11.2017

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.278/2005

THURSEDAY THIS 2^ND DAY OF NOVEMBER 2017

V. Sivakumar,

S/o. Mr.Varathan,

G-2, Perumal Apartments,

No.32, Mangadu Samy Stret,

Nungambakkam,

Chennai – 34.                                                    .. Complainant

                                        ..Vs..

1. M/s. Anupam Foundation Ltd.,

Rep. by its Managing Director,

Shanthimull Nahar,

NO.749, Anna Salai,

Chennai 600 002.

 

2. Shri R.P.Viswananthan,

No.20, Flat G-4, Priyadharshini Flats,

Gangai Amman Koil Street,

Chollaimedu, Chennai -94.

 

3. Smt. S.V.Saraswathy Ammal,

4. Shri. R.Vaidhyanathan

Opposite parties 3 & 4 are

Residing at NO.5, Kasi

Viswanathar Colony IV Street,

West Mambalam, Chennai – 33.                    .. Opposite parties.

 

Counsel for Complainant           :   M/s. C.S.K.Sathish & S.Ansari         

Counsel for opposite party-1     :   M/s. Menon & Goklaney Associates.

Counsel for opposite parties 2 to 4:  Party in person   

ORDER

THIRU. M. MONY, PRESIDENT

This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.3,00,000/- towards mental agony, and haunting fear of demolition and negligent & economic loss and also to refund a sum of Rs.40,800/-  & Rs.55,200/- with interest  and  to pay cost of the complaint.

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

           The complainant submit that he approached the 1^st opposite party for construction of a residential flat which is proposed to be purchased by the 1^st opposite party from opposite party 2 to 4.  The complainant entered into an agreement with the 1^st opposite party on 22.2.2001.   As per the agreement 7.65 % UDS undivided share of the complainant is also during sold to him for a sum of Rs.3,00,000/-.  As per the agreement,  the construction shall be completed within 18 months i.e. on or before 22.8.2002.   The complainant further state that “upon the first opposite party finishing his skeleton building works the complainant on 20.11.2001 performed house warming ceremony.  The complainant on 29.11.2001, 12.1.2002, and 30.3.2002 had paid the 1^st opposite party a sum of Rs.50,000/- and Rs.20,000/- each respectively by cash towards the construction agreement.    

2.     Further the complainant state that the 1^st opposite party entered into an agreement of lease with M/s. Hutchison Essar South Limited had erected a cellular phone signal tower on the terrace of the building without his consent and caused great mental agony for which the complainant filed O.S.No.3920 before the Hon’ble II Asst. City Civil Court, Chennai.  Further the complainant state that the 1^st opposite party without obtaining proper building permission from the CMDA constructed  the building with deviation.  The CMDA issued notice to the complainant claiming a huge amount of Rs.4,11,480/- towards regularization fee for deviation committed in construction.   Further the complainant also state that the complainant paid an excess amount of Rs.30,000/- on 17.3.2003 to the 1^st opposite party under coercion in excess amount.    As such the act of  the opposite parties amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.

3.   The brief averments in Written Version of  the  1^st opposite party is  as follows:

The  1^st opposite party deny each and every allegations except those that are specifically admitted herein.     The 1^st opposite party denies the averment in para-6 of the complaint that around the month of May 2002 to his shock he found that M/s. Hutchitson Esser South Ltd., had erected a Cellular Phone Signal Tower on the terrace of the building without the complainants consent and upon enquiry it came to the complainant ‘s knowledge that the first opposite party claim to have lawful right had inducted the above mentioned company as a lessee and had received a sum of Rs.2,50,000/-.  This opposite party admits the filing of O.S.No.3620/2002 by the complainant before the Hon’ble II Assistant City Civil Court, Chennai.   Further the  1^st opposite party also state that there are deviation in construction.  The CMDA issued  notice for regularization, on 14.7.2002, the 1^st opposite party paid such huge amount of Rs.4,11,480/-; since the claim of CMDA is too high; 1^st opposite party preferred appeal against the order of the CMDA.   Due regularization  order will be passed immediately after disposal of the appeal.    Hence there is no deficiency in service on the part of the 1^st opposite party.

4.   The brief averments in Written Version of  the  opposite parties 2 to 4 are  as follows:

      The  opposite parties deny each and every allegations except those that are specifically admitted herein.    Admittedly the opposite parties 2 to 4 executed power of attorney in favour of 1^st opposite party for development of land belongs to opposite parties 2 to 4.   The complainant entered into the construction agreement with the 1^st opposite party is admitted.    The opposite parties further state that the possession has been handed over to the complainant on 20.11.2001 and the complainant performed the house warming ceremony is admitted in the complaint itself; the allegation of furnished skeleton building is utter false.     It is submitted that the same is only against the first opposite party and the opposite parties 2 to 4 has no role to play.    The opposite parties 2 to 4 submit that the same is between the complainant and the 1^st opposite party and 2^nd to 4^th  opposite parties has nothing to say on those averments.   Hence there is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.

5.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A26 marked.  Proof affidavit of opposite parties filed and Ex.B1 to Ex.B7 marked on the side of the  opposite parties.

6.   The points for the consideration is: 

1. Whether the complainant is entitled to a sum of Rs.3,00,000/- towards mental agony, and haunting fear of demolition and negligence & economic loss as prayed for?

2. Whether the complainant is entitled to refund a sum of Rs.40,800/-  & Rs.55,200/- with interest  and cost  as prayed for?

7. POINTS 1 & 2:

        Both parties has not turned up to advance any oral arguments after filing written arguments.   Admittedly the complainant approached the 1^st opposite party for construction of a residential flat which is proposed to be purchased by the 1^st opposite party from opposite parties 2 to 4.  The complainant entered into an agreement with the 1^st opposite party on 22.2.2001 as per Ex.A3.  As per agreement 7.65 % UDS undivided share of the complainant is also sold to him for a sum of Rs.3,00,000/- is also admitted.  As per the agreement Ex.A2 the construction shall be completed within 18 months i.e. on or before 22.8.2002. The complainant himself admitted in the complaint that “upon the first opposite party finishing his skeleton building works the complainant on 20.11.2001 performed house warming ceremony.  The complainant on 29.11.2001 , 12.1.2002, and 30.3.2002 had paid the 1^st opposite party a sum of Rs.50,000/- and Rs.20,000/- each respectively by cash towards the construction agreement.    But the complainant has not proved that  he has taken the possession only skeleton building and performed house warming ceremony before payment of entire cost of the construction.   Hence the complainant is not entitled to any amount towards delay in possession.

8.     Further the contention of the complainant is that the 1^st opposite party entered into an agreement of lease with M/s. Hutchison Essar South Limited had erected a cellular phone signal tower on the terrace of the building without his consent caused great mental agony for which the complainant fled O.S.No.3920 before the Hon’ble II Asst. City Civil Court, Chennai.  Hence the complainant shall not claim any right before this forum under deficiency of service and unfair trade practice.

9.     Further the contention of the complainant is that the 1^st opposite party without obtaining proper building permission from the CMDA constructed in the building with deviation.  The CMDA issued notice to the complainant claiming a huge amount of Rs.4,11,480/- towards regularization fee for deviation committed in construction.   But on a careful perusal of the record it is seen that as per Ex.A6 cash bill claim was paid by the opposite party to the CMDA.  The complainant has not produced any document for any claim by CMDA with him directly.    The complainant is also claiming a sum of Rs.3,00,000/- towards mental agony, and threat of demolition by CMDA for want of regularization.

10.    Further the contention of the complainant is that the complainant paid an excess amount of Rs.30,000/- on 17.3.2003 to the 1^st opposite party under coercion in excess by the 1^st opposite party.  The complainant has not produced any record.  The complainant is also claiming the said amount with interest at the rate of 18% p.a which is unsustainable.

11.    The contention of the opposite parties 1 to 4 is that admittedly opposite parties 2 to 4 executed power of attorney in favour of 1^st opposite party for development of land belongs to opposite parties 2 to 4.   The complainant entered into the construction agreement with the 1^st opposite party is also admitted.    The contention of the opposite parties is that the possession has been handed over to the complainant on 20.11.2001 and the complainant performed the house warming ceremony is admitted in the complaint itself; the allegation of unfinished skeleton building is utter false.  The complainant has not proved such allegation of taken possession of skeleton building and performed the house warming ceremony.  Therefore the claim of the complainant towards delay in handing over possession is unsustainable.  

12.    Further the contention of the 1^st opposite party is that there are deviation in construction.  The CMDA issued  notice for regularization, as per Ex.A9 the 1^st opposite party paid such huge amount of Rs.4,11,480/-; since the claim of CMDA is to high the 1^st opposite party preferred appeal against order of the CMDA.   Due regularization  order will be passed immediately after disposal of the appeal Ex.A16.   As such the claims towards mental agony for threat of demolition are imaginary and never arise.

13.    Further the contention of the 1^st opposite party is that grievance with regard to erection of a Cellular Phone signal tower on the terrace of the building cannot be raised in this forum because admittedly suit in O.S.No.3920 of 2002 pending before the Hon’ble II Assistant City Civil Court, Chennai with regard to the same subject matter.  Further the contention of the opposite parties that under coercion n excess amount of Rs.30,000/- has been collected from the complainant is absolutely false.  There is no iota of any evidence filed before this forum.  Equally the claim of Rs.1,00,000/- towards mental agony never arise in this case; since admittedly suit in O.S.No.3920/ 2002 is pending before the Honble II Assistant City Civil Court, Chennai.  Considering the facts and circumstances of the case this forum is of the considered view that the  complainant is not entitled for any relief as prayed for in the complaint and the point is answered accordingly. 

            In the result the complaint is dismissed.  No cost

           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 2^nd day  of  November  2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1- 15.2.2004  - Copy of the complaint.

Ex.A2- 26.10.2000         - Copy of Quotation offered by 1^st opp. party.

Ex.A3- 22.2.2001  - Copy of construction agreement.

Ex.A4- 12.3.2001  - Copy of approved agreement.

Ex.A5- 16.6.2001  - Copy of sale deed.

Ex.A6- 29.11.2001         - Copy of cash receipt.

Ex.A7- 30.3.2003  - Copy of cash receipt.

Ex.A8- 4.7.2002    - Copy of letter to 1^st opposite party.

Ex.A9- 4.7.2002    - Copy by CMDA to 1^st opp. party.

Ex.A10- 13.7.2002         - Copy of complainant letter to 1^st opp. party.

Ex.A11- 4.10.2002         - Copy of complainant letter to 1^st opp. party.

Ex.A12- 11.12.2002- Copy of complaint lodged with City Crime

Ex.A13- 16.1.2002         - Copy of  impleading petition filed by complainant.

Ex.A14- 17.3.2003         - Copy of possession handing over letter by 1^st opp. party.

Ex.A15- 19.3.32003- Copy of cash receipt.

Ex.A16- 11.4.2003         - Copy of letter by complainant to CMDA.

Ex.A17- 17.4.2003         - Copy of NOC application by complainant.

Ex.A18- 17.4.2003         - Copy of receipt issued by CMDA.

Ex.A19- 8.5.6003  - Copy of completion certificate by CMDA.

Ex.A20- 10.6.2003         - Copy of letter from TNEB.

Ex.A21- 31.8.2003         - Copy of article in Dhinamalar.

Ex.A22- 11.6.2004         - Copy of receipt issued by TNEB.

Ex.A23-       -       - Copy of TNEB meter  card.

Ex.A24- 6.1.2005  - Copy of property assessment receipt.

Ex.A25- 10.1.2005         - Copy of Rent receipt.

Ex.A26- 20.1.2005         - Copy of bank statement.

Opposite parties document: -   

Ex.B1- 22.2.2001  - Copy of Offer letter.  

Ex.B2- 22.2.2001  - Copy of agreement  and construction.

Ex.B3- 12.4.2002  - Copy of Metro water and sewerage connection sanction

                              letter.

 

Ex.B4- 22.5.2002  - Copy  of application for electricity supply made in the

                               complainant’s name.

 

Ex.B5- 7.8.2002    - Copy of appeal filed by the opposite party.

Ex.B6- 17.3.2003  - Copy of money paid to the CMDA.

Ex.B7- 8.5.2003    - Copy of completion certificate.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.