Tamil Nadu

StateCommission

FA/72/2014

CHANDRA PRABHU HOUSING LTD., MANAGING DIRECTOR - Complainant(s)

Versus

C. NAMMALWAR NAIDU - Opp.Party(s)

R. RAVICHANDRAN

21 Feb 2022

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 3.

 BEFORE   Hon’ble THIRU. JUSTICE. R. SUBBIAH                   ::     PRESIDENT                       

                  Tmt.Dr.S.M.LATHA MAHESWARI                            ::      MEMBER

 

F.A. No.72/2014

  (Against the order in C.C. No.49/2005 on the file of the D.C.D.R.C., Chengalpattu.)

                         DATED THE 21^ST  DAY OF FEBRUARY 2022

 

Chandra Prabhu Housing Ltd.,

Rep. by its Managing Director,

‘Jyothi Kunj’,

No.22, (Old No.62) Burkit Road,

T. Nagar,

Chennai – 600 017.                                                              .. Appellant / Opposite party.

 

- Versus -

1. Mr. C. Nammalwar Naidu,

2. Mrs. C. Sudha,

3. Mrs. Vasantha,

4. Mrs. Geetha,

5. Mr. Balaji,

6. Mrs. Prasanna Heymanth,

All are residing at:

No.9, Raja Pandian Avenue,

Sembakkam,

Chennai – 600 073.                                                        .. Respondent s / Complainants.

 

Counsel for Appellant /Opposite party                : M/s. P. Ravichandran

Counsel for Respondent s/Complainants                     : M/s. D. Rajagopal

 

This appeal coming before us for final hearing today on 27.12.2021 and on hearing the arguments of Appellant and on perusing the material records, this Commission made the following :-

ORDER

Tmt. Dr. S.M. LATHA MAHESWARI:

            This appeal has been filed by the appellant / opposite party under section 15  of the Consumer Protection Act 1986 against the order made in CC.No. 49/2005, on the file of the District Consumer Disputes Redressal Commission, Chengalpet.

 

1.         The factual background culminating  in to  appeal is as follows:-

It was the case of the complainant that the 2^nd complainant for himself and as Power Agent of the other complainants had entered into a Joint Venture Agreement with the opposite party dt.08.03.2001 for developing their property into flats.  As per the Joint Venture Agreement, it was fixed that the complainants were entitled to 28% of the built up area along with proportionate undivided share and the opposite party was entitled to 72% of the remaining total built up area along with proportionate UDS.    The opposite party was made responsible for obtaining the necessary sanctions and as per clause 5 of the Agreement the opposite party should handover the construction within 36 months from the date of sanction of the plan.  However, it was contended that  the opposite party did not act as per the Agreement and did not allot 28% of the total area which comes to 5,908 sq. ft. but had allotted only 5,570 sq. ft. and the deficit area comes to  131.40 sq. ft.   The built up deficit area to be allotted to the complainant was valued at Rs.9,98,400/-.  The complainants also cited various unfinished works in Block 1 G-1, Block 5 F-2 and also valued the unfinished works to the tune of Rs.2,12,600/-.  It was contended by the complainant that the opposite party used substandard materials for the construction and also had not given the Construction Agreement to the complainants.  Thus aggrieved by the act of the opposite party, the complaint was filed alleging deficiency in service on the part of the opposite party and to direct the opposite party to deliver their share of 28% of the total built up area, to complete the unfinished works and to pay Rs.2,47,500/- towards rental loss and to handover the approved plans and construction Agreement along with a compensation of Rs.15,00,000/- and cost of the complaint.

2.         The opposite party filed version stating that it is true that 28% built up area was agreed to be allotted to the complainants however the same amounted only to 5,770 sq. ft. and not 5908 st. ft. as alleged by the complainants.  It was submitted that Rs.5,50,000/- was given as security deposit to the complainants which was agreed to be refundable at the time of taking possession of the built up area by the complainant, but they failed to refund the same and committed breach of Joint Venture Agreement.  The opposite party also submitted that he has completed the construction within 36 months as per the Agreement and as the plan approval obtained for the blocks are at different dates the same were handed over to the complainants respectively but within 36 months and there was no defects or deficiency in the work done by them.   The opposite party also gave the particulars about the allotment of flats with respective sq. ft. to the purchasers and cited that this Commission had no jurisdiction to try the complaint as, as per the clause 13 of the Agreement “in the event of breach of Agreement” by either party the aggrieved party concerned shall be entitled to sue for specific performance and pray for recovery of expenses from the party who committed the breach.  Thus, he prayed for the dismissal of the complaint. 

3.         The complainant filed proof affidavit and submitted documents marked as Ex.A1 to Ex.A11.  On the side of the opposite party proof affidavit was filed and documents Ex.B1 to Ex.B11 was filed. 

4.         Advocate Commissioners along with qualified Engineers were appointed on request by both sides and they filed reports marked as Court Documents Ex.C1 & Ex.C2.

5.         The Learned District Commission after perusing the pleadings and material evidence produced by both the parties held that the opposite party has committed deficiency in service and directed to deliver the deficit built up area of 1453 sq. ft in the extent of 6491 sq. ft. or to pay the amount of Rs14,53,000/- being the equal amount for the deficit area and also to pay Rs.2,50,000/- to complete the unfinished works with a compensation of Rs.77,000/-, totalling an amount of Rs.3,27,7000/- within one month.

Aggrieved by the same the opposite party has preferred the present appeal before us.

6.         Point for consideration:-

Whether the appeal has to be allowed setting aside the order of the learned District Commission?

7.         Point:-

Heard the learned Counsel appearing for the appellant. There was no representation for the Counsel for the respondents and no written arguments were also filed on their behalf.   It is argued by the learned Counsel admitting the Joint Venture Agreement between the parties and that a sum of Rs.5,50,000/- was paid to the complainant as advance which is refundable and also the complainant was liable to pay electricity deposit at the time of handing over the building.  Further submitted that the Joint Venture Agreement was acted upon and the flats were constructed  and totally Rs.6,00,000/- and one shop was allotted to the complainant being the 28% share agreed as per the Agreement.   It is argued that at the time of handing over the building, the complainant is liable to pay Rs.1,05,000/- towards deposit of EB connection, additional construction cost of Rs.1,14,500/-  along with the refundable deposit of Rs.5,50,000/- and submitted that the complainant was liable to pay a total sum of Rs.7,69,500/- which he failed to do.  It is also submitted by the Counsel for the opposite party that the complainant had received a total built up area of 5938 sq. ft. which is more than 28% of the agreed built up area and out of the unapproved constructed area the complainant was entitled to receive 28% i.e. 180.5 sq. ft. but the complainant received excess of 133 sq. ft. which should be adjusted to the approved constructed area received by the complainant.  He submitted that the Advocate Commissioner and Engineer’s Report i.e. Ex.C2 has to be rejected as it reflects the headroom measurement as constructed sq. ft. and claiming thus 28% in the each headroom in all 6 blocks is absolutely ridiculous.   He further argued that the lower court failed to see that no written or oral objection was made by the complainant for the first Advocate and Commissioner’s Report Ex.C1.   The measurement of headroom as 903.7 sq. ft and the balconies as 809.26 sq. ft. altogether comes to 1712.96 sq. ft. should be ignored from the calculation of deficit area.  Thus in toto, he argued that the findings and judgement delivered by the District Commission based only upon Ex.C2 (Advocate Engineer’s Report) is against law and evidence and he prayed to set aside the same.   

8.         We perused the pleadings and documents produced by the parties before the District Commission as well as before this Commission.   It is an admitted fact between the parties that a Joint Venture Agreement was entered between them for construction of building with proportionate share of built up area and also undivided share of land of 28% for the complainant and 72% for the opposite party builder.  The case of the complainant is that the builder defaulted in providing the proportionate 28% built up area amounting to 5908 sq. ft. but has provided only 5770 sq. ft. and did not provide the deficit area of 131.40 sq. ft.  However, the case of the opposite party is on a different angle and the calculation of 28% by the opposite party is on a different footing.  The Advocate Commissioner appointed twice along with the Engineer by the District Commission below has provided two different findings on the allegations as to the deficit area and the other nature of defects in construction as alleged by the complainant.   The learned District Commission has relied upon the second Advocate Commissioner’s Report along with the Engineer’s Report submitted for the second time which is favourable to the complainant.  It is to be seen that the reports filed by both the Advocate Commissioners could not be relied upon to arrive at a finding without any corroborative oral evidence let in support of the findings of the Commissioners by the parties.  It is also seen that the second report was taken into consideration by the learned District Commission and no reason was assigned by the said Commission pointing out any error or defect in the first Commissioner’s Report.  Thus, without eschewing the first report and without setting aside the same the learned District Commission relying upon the second Commissioner’s Report is not proper.   When we analyse the allegations made by the complainant with regard to the deficit measurements and the defects we are of the opinion that the issue involved is complicated enough to require evidence to be adduced both documentary and orally and also with assistance of an expert as it involves mixed question of law and facts which could not be decided mechanically in a summary manner by the Consumer Commission.  In such circumstances, the finding of the learned District Commission arriving at a finding based on the report of the second Advocate Commissioner alone without setting aside the first Commissioner’s Report and fixing the compensation unilaterally for the deficit area is erroneous.  In such circumstances, the finding is liable to be set aside as it is arrived without properly analysing the requisite evidence adduced by both parties.  The parties are at liberty to approach the appropriate civil forum to vent out their grievances by letting sufficient oral and documentary evidence.  We  thus set aside the findings rendered by the learned District Commission allowing the complaint partly and directing the opposite party to the handover the deficit built up area or in the alternative to pay the amount of Rs.14,53,000/-.  In the facts and circumstances of the case, we order no cost in this appeal.

In the result, we allow the appeal setting aside the order dt.01.04.2013 of the District Commission, Chengalpattu, made in C.C. No.49/2005 .    No costs.

 

 

 

S.M.LATHA MAHESWARI                                                                         R. SUBBIAH             

          MEMBER                                                                                          PRESIDENT