Date of Filing       : 20.07.2017

                                                                                     Date of Disposal  : 29.09.2022

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.53/2017

THIS THURSDAY THE 29^th DAY OF SEPTEMBER 2022

K. Nagarajan,

S/o. Kanniappan (Late),

No. 160-B, A.L.S Nagar, Madambakkam,

Chennai - 600126.                                                                            .......Complainant

//Vs.//

1. BR Constructions, Now known as Kumaran Constructions,

Rep. by its Proprietor, G. Balasubramanian,

S/o P. Gunasekaran,

Periyar Nagar Main Road,

Near Samuthaya Nala Koodam,

Madambakkam, Chennai - 600126.                                                                                   

2. BR Constructions, Now known as Kumaran Constructions,

Rep. by its another Proprietor,

V.M. Ravichandran, S/o V. Muthu,

Periyar Nagar Main Road, Samudaya Nala Koodam,

Madambakkam, Chennai - 600126.                                                                       

3. Mr. Mathew Philip,

S/o Philip Mathew (Broker),

C.E.B. Residency, Sadasivam Nagar,

Madambakkam, Chennai - 600126.                                             .....Opposite Parties   

Date of filing  : 20.07.2017

Counsel for the complainant                  :  M/s. G.S.Sugashini, Advocates.

Counsel for the 1^st opposite party         :  M/s. Sasirekha, Advocates.                               

Counsel for the 2^nd opposite party        :  Ex-parte. (dt.12.10.2017)

Counsel for the 3^rd opposite party         :  Ex-parte. (dt.08.11.2017)

                                                                    (M/s.P.Gengadaran, Advocates)

This complaint having came up for final hearing before us on 13.09.2022, M/s. G.S.Sugashini, Advocates, today did not appear, in the presence of M/s.Sasirekha, Advocates for the 1^st opposite party and the opposite parties 2 & 3 were called absent and set Ex-parte on 12.10.2017 & 08.11.2017 respectively and having perused the documents and evidences of both side and heard oral argument of 1^st opposite party, this Commission delivered the following:

ORDER

PRONOUNCED BY THIRU. U.KASIPANDIAN, PRESIDENT.

1.       This complaint is filed by the complainant under Sec.12 of Consumer protection Act, 1986, against the opposite parties seeking direction, directing the opposite parties to comply the conditions of the construction agreement immediately for all the three flats along with the UDS of about 1300 sq.ft.; to complete the work left unfinished in the ground floor flat which was handed over to the complainant only on 15.03.2017, without any further delay; to pay the complainant the said aggregate sum of Rs.11,75,000/- towards penalty for the delay in completion and handing over of the flats @ Rs.25,000/- p.m. for every month of delay, as per clause no.3 of the JV agreement, plus Rs.3,84,000/- towards rental charges @ Rs.6,000/- p.m. during the period of construction of the flats, less the advance money of Rs.5,00,000/- being the refundable amount;  to pay Rs.2,00,000/- towards compensation for inordinate delay,  mental agony and unfair trade practice suffered by the complainant to claim the payment; and to pay Rs.30,000/- towards cost of the complaint to the complainant.

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

            It is averred that the complainant, as absolute owner of the house site measuring an extent of 3070 sq.ft. comprised in S.No.697/11 part and 697/12 in Patta No.3405 as per patta S.Nos.697/11B and 607/12B at Bharathiyar Street, Madambakkam Village, Tambaram Taluk, Kancheepuram District had entered into a Deed of agreement of Joint Venture on 13.02.2012 with the opposite parties 1 & 2. It is further averred that as per the Joint Venture agreement, the complainant sold 60% of UDS in the said land to the opposite parties 1 & 2 and retained the remaining 40% of UDS in the land property for his personal use. As per the terms and conditions of the Joint Venture the complainant is entitled to 3 flats i.e., two flats in ground floor and one flat in 2^nd floor with separate EB service connections and two bore wells with car parking as described in schedule B of the Joint Venture agreement. The opposite parties are entitled to the remaining 60% of the UDS of the total constructed area with car parking as described in schedule C of the Joint Venture agreement. The complainant further averred that a sum of Rs.5,00,000/- was paid to him by the opposite parties 1 & 2 which is refundable at the time of taking possession of 3 flats. It is also averred that in pursuance of the Joint Venture Deed, the complainant executed a Registered General Power of Attorney Deed on 13.02.2012 which was registered as document No.313/2012 with Sub Registrar, Selaiyur in favour of the opposite parties 1 & 2, facilitating them to do all sorts and acts in connection with the construction works as per the agreement. It is further averred that if the opposite parties 1 & 2 failed to fulfill the construction in the time frame, they have to pay an amount of Rs.25,000/- p.m. as penalty for every month of delay. It is also averred that before entering into the deal, the opposite parties 1 & 2 orally agreed to pay a rent of Rs.6,000/- p.m. for complainant’s dwelling, till handing over possession of the flats. It is averred that the opposite parties 1 & 2 have failed to complete the construction and also failed to deliver possession of 3 flats, barring one in the ground floor on 15.03.2017 with abnormal delay, that is also incomplete without 3 phase EB connection without safety grill  gate not fixed, car parking and without bore well. It is further averred that due to unfair act of the 1^st & 2^nd opposite parties the complainant suffered mental agony and as a result he fell sick and hospitalized and spent a sum of Rs.2,00,000/- towards medical expense. It is further averred that the opposite parties sold 7 flats before delivering complainant’s share. It is also averred that legal notice dated 09.06.2017 was caused to the opposite parties 1 & 3 and the opposite parties received the legal notice but failed to issue any reply. This notice sent to 2^nd opposite party was returned with an endorsement “unclaimed”. Hence the present complaint has been filed against the unfair trade practice and deficiency of service on the part of the opposite parties. It is further averred that the opposite parties abused the EB connection in the name of the complainant to the tune of Rs.40000/- but till date the opposite parties neither delivered the possession of the 2 flats 1 in ground floor and other in 2^nd floor nor completed the construction of the one flat in ground floor which was symbolically delivered to this complainant. Hence, this complaint.

3.         The brief contention of written version of the 1^st opposite party is as follows:-

            It is averred that the complainant had filed this complaint after lapse of 5 years. Hence the complaint is barred by Limitation Act. It is further averred that the Joint Venture Agreement dated 13.02.2012 has no evidentiary value. The complaint is full of civil nature. It is also averred that the Civil Engineer Report has not authenticated one. It is further averred that the opposite party realize on general power of attorney executed on 14.04.2012. It is further averred that the opposite parties have constructed 7 flats but could not sell those flats due to vexatious complaints lodged and initiated by the complainant. It is further averred that after executing power of attorney, the complainant cannot be the owner of the property. Therefore, there is no deficiency and unfair trade practice and gross negligence on the part of the 1^st opposite party. It is further averred that in the ground floor 2 flats, 1^st floor 3 flats and 2^nd floor 2 flats are there. 1^st floor and 2^nd floor property had already sold out. But the ground floor properties were not able to sold out. It is also averred that the opposite party had arrived Rs.75,00,000/- regarding schedule property and had paid the same to the complainant. Therefore it is prayed that the complaint may be dismissed.

4.         The 2^nd opposite party was called absent and set Ex-parte dt.12.10.2017 and this Commission has decided to dispose of the complaint on merits in the absence of the 2^nd opposite party.

5.         On 18.08.2017 M/s.P.Gengadaran, Advocates filed vakalat for the 3^rd opposite party. Written version not filed till 08.11.2017. The 3^rd opposite party was called absent and set Ex-parte on 08.11.2017. There is no prayer against the 3^rd opposite party.

6. In order to prove the case, on the side of both, the proof affidavit submitted as their evidence, and Ex.A1 to Ex.A17 were marked. No documents on the side of the 1^st opposite party.  Written argument of both filed and also heard oral argument of 1^st opposite party.

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

(1) Whether the complainant is a consumer?

(2) Whether the complaint is filed within time?

(3) Whether this Commission does have jurisdiction to try this complaint?

(4)Whether there was any deficiency in service on the part of the opposite parties?

(5) Whether the complainant is entitled to compensation and costs of the proceedings?

(6) To what other reliefs, the complainant is entitled?

8.         Point No.1 to 3 :-                 The complainant has been residing within the territorial limits of this Commission. As well as the opposite parties carrying on business within the territorial limits of this Commission. The complainant and the opposite parties 1 and 2 have executed the Joint Venture Agreement dated 13.02.2012; The consideration alleged in the complaint is Rs.17,89,000/-, accordingly points 1 to 3 are answered in favour of the complainant.

9.         Point No.4 to 6:-      It is admitted fact that the complainant and the opposite parties 1 & 2 had entered into a Joint Venture Agreement dated 13.02.2012 Ex.A1 and also registered power of attorney dated 13.02.2012. As per terms of Ex.A1, the complainant has executed power of attorney in favour of the opposite parties 1 & 2 for developing 60% of total extent of 3070 sq.ft.; the balance 40% of the total extent was retained by the complainant for his personal use. Within 60% of 3070 sq.ft. the opposite parties 1 & 2 has to build 7 flats and hand over 3 flats to the complainant. The complainant was offered 3 flats. As per Joint Venture Agreement the complainant was entitled to 2 flats in the ground floor and 1 flat in the 2^nd floor. As per terms of the Joint Venture Agreement if the construction work is not completed within 12 months from the date of approval of the plan, the opposite parties should pay Rs.25,000/- per month for delay. It is also the terms of the Joint Venture Agreement that the opposite parties 1 & 2 has to pay a sum of Rs.6,000/- per months towards the rent till the date of handing over of the possession. It is also one of the terms of the Joint Venture Agreement that the opposite parties 1 & 2 shall pay a sum of Rs.5,00,000/- as refundable interest free deposit. It is the case of the complainant that the opposite parties 1 & 2 have paid a sum of Rs,.5,00,000/- and after handing over the possession of the land. The opposite parties failed to pay the rent subsequently they also did not commence the construction work as per the terms of the Joint Venture Agreement. The opposite parties even protracted to execute the construction agreement. Further the opposite parties have obtained the plan approval and constructed the flats as their whims and fancies as a result, the complainant was shocked and hospitalized. At last, the opposite parties have handed over an incomplete flat in February 2017. Aggrieved by such act of the opposite parties 1 & 2, the complainant engaged an approved valuever and prepared the valuation report after giving due to notice to the opposite parties 1 & 2. The said report is Ex.A13. The said report of the valuever Ex.A13 will prove the complainant’s case.

10.       On the other hand the 1^st opposite party in his written version as well as proof affidavit averred that the complaint is barred by limitation and after executing the power of attorney towards 60% of the total area of land 3070 sq.ft. The question of Joint Venture Agreement do not arise and the opposite parties 1 & 2 further averred that they had to pay Rs.75,00,000/- to the complainant. But the opposite parties have failed to file any proof for such averments. The opposite parties also contented that once the general power of attorney has been executed in favour of the opposite parties 1 & 2, then there is no question of joint venture agreement. Such contention of the 1^st opposite party has no force. The 1^st opposite party further contented that they have built 7 flats and sold out the flats in 1^st floor and 2^nd floor. Such act of the opposite parties are against the terms of the joint venture agreement dated 13.02.2012. The complainant is entitled to 2 flats in ground floor and one flat in 2^nd floor. Therefore, it is clearly proved the opposite parties failed to comply with the terms of the joint venture Ex.A1.

11.       Deficiency & unfair trade practice as defined under Sec.2 (g) & ® of the Consumer Protection Act, 1986;

            “deficiency” means any fault, imperfection or shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.”

            “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice.”

12.       From the foregoing fact that, there is fault, imperfection, short coming and inadequacy in the quality of nature and manner of performance which are required to be maintained by the opposite parties 1 & 2. The opposite parties 1 & 2 as power of attorneys, should have filed statement of accounts to the complainant principal. They failed to do so. Hence they are liable to compensate the complainant. Likewise the opposite parties 1 & 2 had indulged and adopted unfair and deceptive method / practice by falsely representing that their services are of a particular standard. The opposite parties made the complainant to execute Ex.A1 & Ex.A2, but failed to comply with the terms of Ex.A1 & Ex.A2. For such act of opposite parties 1 & 2, they are liable to compensate the complainant. Thus, the points 4 to 6 are answered in favour of the complainant.

13.       In the result, this complaint is allowed. The opposite parties 1 & 2 are directed

1. To hand over 1228 Sq.ft.vacant land as per Joint Venture Agreement to the complainant.;
2. To complete the construction work  of unfinished flat in the Ground Floor which was delivered and to deliver two more flats one in ground floor and another one in 2^nd floor to the complainant ;
3. To pay the compensation of Rs.25,000/- p.m. for delayed delivery from 13.02.2013 till date;
4. To pay a sum of Rs.6,000/-  p.m. (Rupees Six Thousand only) towards the rent from 13.02.2012 till realization;
5. To pay a sum of Rs.2,00,000/- (Rupees Two Lakh only)  towards compensation for deficiency of service, unfair trade practice and mental agony suffered by the complainant; and
6. To pay a sum of Rs.30,000/- (Rupees Thirty 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 shall carry interest @ 9% 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 29^th day of September 2022.

      Sd/-                                                                                                                         Sd/-

MEMBER-I                                                                                                PRESIDENT

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

List of documents filed by the opposite party(s):-

• Nil -

      Sd/-                                                                                                                         Sd/-

MEMBER-I                                                                                                PRESIDENT