Date of Filing      : 08.05.2018

                                                                                                                Date of Disposal : 29.07.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                 .…. PRESIDENT

                 THIRU J.JAYASHANKAR, B.A.,B.L.,                                                            ......MEMBER-I

                 THIRU.P.MURUGAN,B.Com.                                                                       ....MEMBER-II

CC. No.12/2019

THIS FRIDAY, THE 29th DAY OF JULY 2022

 

Mrs.Lakshmi, W/o.Udhaya Baskar,

No.16, Janakiram Reddy, 1st Main Road,

Near Grace Super Market, Chennai.                                               …Complainant.

 

                                                 //Vs//

1.Building Paradise,

    Rep. by its partners B.Chandra & G.Hemasri,

    Swarna Homes, Shop No.6, Redhills Road,

    Thirumalaipriya Nagar, Ambattur, Chennai – 600 053.

 

2.B.Chandra, W/o.Mr.Bhakthavatsalam,

    Partner at Building Paradise,

    No.16, 1st Street, East Banu Nagar, 

    Ambattur, Chennai -600 053.

 

3.G.Hemasri,

    Partner at Building Paradise,

    No.16, 1st Street, East Banu Nagar, 

    Ambattur, Chennai -600 053.                                             ..........Opposite parties. 

 

Counsel for the complainant                                            :   Mr.M.Sanathkumar, Advocate.

Counsel for the opposite parties                                     :   M/s.P.Jesus Moris Ravi, Advocate. 

                         

This complaint is coming before us on various dates and finally on 20.07.2022 in the presence of Mr.M.Sanathkumar, Advocate counsel for the complainant and M/s.P.Jesus Moris Ravi, Advocate counsel for the opposite parties and upon perusing the pleadings and evidences produced by both parties, this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service on the part of the opposite parties along with a prayer to direct the opposite parties to pay a sum of Rs.3,00,000/- for handing over the incomplete construction and Rs.2,00,000/- as compensation for the mental agony caused to the complainant along with Rs.10,000/- cost of the complaint. 

Summary of facts culminating into complaint:-

 

The crux of the complaint was that the complainant agreed to purchase a flat with 846 square feet constructed area along with 340 square feet undivided share in land from the opposite parties and entered into an agreement for sale and the builder’s agreement dated 09.09.2013. The total cost of construction including the land cost and also construction amounts to Rs.26,13,000/- to be paid as per the payment schedule.  It was also agreed that the construction would be hand over within 15 months from the date of agreement.  However, on threatening by the opposite parties the Sale Deed vide document No.13298/2014 and a new construction agreement document No.13297/2014 was executed on 24.09.2014 and the same were registered.  As per the registered construction agreement dated 24.09.2014 the opposite parties were bound to deliver the property within 15 months commencing from Sep’2014 and ending with Dec’2015, but the opposite party did not deliver the construction neither as per the previous agreement nor as per the 2nd agreement.  When a legal notice was issued by the complainant questioning the non delivery of the said apartment within time no reply was given by the opposite parties. On 13.05.2015 the additional amount of Rs.2,75,992/- was requested by the opposite party to be paid by the complainant.  The complainant also sent a complaint to the Chief Minister Cell dated 22.06.2016.  After intervention by the police the opposite party assured to deliver the property within 4 months from the date of promise i.e., 24.07.2017.  On 30.07.2017 one Mr.Saravanan made a phone call requesting the complainant to come and collect the key of the said property even before completion of the work and when the complainant met the opposite party to receive the keys she was made to sign and to put her thumb impression in few 20 rupees stamp papers and in some green and white papers.  The complainant thus submitted that the property was handed over to her incompletely without electricity connection, incomplete plastered walls, unfinished plumbing works, etc,. Thus aggrieved the present complaint was filed alleging deficiency in service on the part of the opposite parties along with a prayer to direct the opposite parties to pay a sum of Rs.3,00,000/- for handing over the incomplete construction and Rs.2,00,000/- as compensation for the mental agony caused to the complainant along with Rs.10,000/- cost of the complaint.

Defence of the opposite parties:

The opposite party filed version disputing the allegations of deficiency in service alleged against them contending that the complaint was barred by limitation.  It is submitted that as per the Memorandum of Understanding dated 30.07.2017 earlier disputes had been settled and the complainant agreed to get possession of the property and to complete the incomplete construction at their own cost.  They also cited the arbitration clause in the construction agreement dated 24.09.2014 and hence alleged that the Consumer Complaint is not maintainable before this commission and hence sought for dismissal of the complaint.

On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A16 were marked. On the side of the opposite parties neither proof affidavit nor documents were filed in proof of their defence raised in the written version.  Hence the evidence on their side was closed on 10.05.2022 and thereafter none appeared for the opposite parties.

Point for consideration:

Whether the alleged deficiency in service on the part of the opposite party was proved by the complainant successfully and if so to what relief the complainant is entitled?

Point:

On the side of the complainant the following documents were filed in support of the complaint allegations;

Sale Agreement dated 09.09.2013 was marked as Ex.A1;

Unregistered Building Agreement dated 09.09.2013 was marked as Ex.A2;

Receipt issued by the opposite parties in the name of complainant dated 10.12.2013 was marked as Ex.A3;

Construction Agreement between the parties dated 24.09.2014 was marked as Ex.A4;

Sale Deed dated 24.09.2014 was marked as Ex.A5;

Letter issued by the opposite party to the complainant demanding excess payment dated 13.05.2015 was marked as Ex.A6;

Legal notice issued by the complainant to the opposite party dated 06.06.2015 was marked as Ex.A7;

Complaint written by the complainant to C.M. Cell dated 22.06.2015 was marked as Ex.A8;

Acknowledgement by police was marked as Ex.A9;

Summon issued by the police to the complainant for enquiry dated 02.07.2017 was marked as Ex.A10;

 Letter written by the opposite party to the police personal requesting 4 month time to hand over the possession to the complainant dated 24.07.2017 was marked as Ex.A11;

Legal notice issued by the complainant to the opposite parties dated 19.12.2017 was marked as Ex.A12;

Returned covers were marked as Ex.A13 & Ex.A14;

Acknowledgement for the proof of service was marked as Ex.A15;

Photos were marked as Ex.A16;

Heard the oral arguments adduced and perused the written arguments filed by the complainant.  In spite of opportunities given on several dates commencing from 19.04.2022, 10.05.2022, 13.06.2022 and 04.07.2022 the opposite parties did not appear before this Commission and also did not file proof affidavit and written arguments.  Hence they were called absent and set ex-parte.

The counsel for the complainant argued that inspite of payment of the entire construction money of Rs.26,13,000/- paid by the complainant, the opposite parties delivered the construction with huge delay in incomplete stage of construction.  The counsel for the complainant further submitted that the Memorandum of Understanding alleged to have entered between the parties was illegal by obtaining fraudulently the signature of the complainant.  Thus he sought for the complaint to be allowed.

We perused the pleadings and evidences produced by both parties.  Though the opposite party filed a written version stating that a Memorandum of Understanding was entered between the parties they failed to produce the same before this Commission and hence the contention that the complainant agreed to receive the flat in an incomplete stage of construction and also agreed to complete the construction at their own cost was not proved.  Even in their written version they have admitted that the flat was handed over to the complainant in an incomplete stage.  Therefore, by their own version they have admitted that flat was handed over in an incomplete stage after the expiry of period agreed in the construction agreement. Hence we hold that the opposite party had committed deficiencies in service in handing over the apartment with a huge delay beyond the period fixed under the construction agreement.

However, the prayer of the complainant to direct the opposite parties to pay a sum of Rs.3,00,000/- towards the compensation for handing over the possession of the flat in an incomplete stage without electricity connection, plastered walls, unfinished plumbing works etc., could not be awarded in entirely for the reason that the complainant did not file any independent assessment report for the expenses to be incurred for completing the incomplete construction works. As it is amply proved that the flat was handed over with huge delay after the complainant was made to run from pillar to post and after the complainant approached the police we feel that a compensation of Rs.1,00,000/- would be proper for the delay in handing over the flat and we also order Rs.10,000/- for litigation expenses to the complainant.

In the result, the complaint is partly allowed. The Opposite Parties 1 to 3 are jointly and severally liable 

a) to pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for delay in handing over the possession to the complainant;

b) to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant; 

c) Amount in clause (a) to be paid within six weeks from the date of receipt of copy of this order failing which 6% interest will be levied from the date of complaint till realization. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 29th day of July 2022.

 

     Sd-                                             Sd-                                                            Sd- 

MEMBER-II                               MEMEBR-I                                            PRESIDENT

 

List of document filed by the complainant:-

 

Ex.A1 09.09.2013 Agreement for sale. Xerox

Ex.A2 09.09.2013 Unregistered builders agreement. Xerox

Ex.A3 10.12.2013 Receipt. Xerox

Ex.A4 24.09.2014 Constrction agreeement. Xerox

Ex.A5 24.09.2014 Sale Deed. Xerox

Ex.A6 13.05.2015 Letter from opposite party demanding excess payment. Xerox

Ex.A7 06.06.2015 Legal notice. Xerox

Ex.A8 22.06.2015 Complaint at CM Cell. Xerox

Ex.A9 12.07.2017 Acknowledgement by police. Xerox

Ex.A10 02.07.2017 Summon by police. Xerox

Ex.A11 24.07.2017 Letter requesting 4 months time by opposite party. Xerox

Ex.A12 19.12.2017 Legal notice. Xerox

Ex.A13 20.12.2017 Receipt. Xerox

Ex.A14 20.12.2017 Returned cover. Xerox

Ex.A15 28.12.2017 Acknowledgement card. Xerox

Ex.A16 ............... Photos. original

 

List of documents filed by the opposite parties;

 

NIL

 

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  MEMBER-II                                     MEMBER-I                                        PRESIDENT