Tamil Nadu

South Chennai

CC/405/2014

sathiyanarayana Murty - Complainant(s)

Versus

Chairman True value homes - Opp.Party(s)

-

24 Jul 2015

ORDER

                                                                     Date of Complaint  : 10.10.2014

                                                                     Date of Order        :  24.07.2015

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

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

 

PRESENT :    THIRU. B. RAMALINGAM, M.A.M.L.,                              : PRESIDENT 

                      TMT.K. AMALA, M.A. L.L.B.,                                             : MEMBER II

                                                                  

C.C.No. 405 / 2014

THIS  FRIDAY  THE 24^TH  DAY OF JULY  2015

R. Satyanarayana Murthy,

S/o. Venkateswararao,

Flat No.1031, TVH Lumbini Square,

127, A Brick Kiln Road,

Purasaiwalkam,

Chennai 600 007.                                                      .. Complainant.

 

                                      - Vs-

True Value Homes India Private Limited, Rep. by its Chairman Mr.N.Ravichandran, Registered Office No.21, C.V. Raman Road, Alwarpet, Cehnnai 600 018.                                                      ..Opposite party		.. Opposite party.

 

For the complainant                           :   Party in person.

For the opposite party               :   Exparte.  

 

           Complaint under section 12  of the Consumer Protection Act, 1986 for a direction to the opposite party to transfer of Rs.20,376/- being the maintenance deposit with interest and also to transfer of corpus deposit of Rs.1,00,000/- with interest and also to pay a sum of Rs.3,33,600/- as damages with cost of the proceedings to the complainant.  

ORDER

THIRUMATHI.K.AMALA,   ::    MEMBER-II

1. The Case of the complainant is briefly as follows:

         The opposite party is a builder and service provider and agreed to construct an apartment to the complainant for consideration and also under took to maintain the same  on payment of agreed charges.   The complainant booked one apartment in the 1^st block on 3^rd floor after paying the booking advance of Rs.3,00,000/- on 1.7.2006 and entered into an agreement for sale on 15.3.2007 wherein the complainant agreed to purchase the 576 sq ft. undivided share of land in the total extent of 143 grounds and 1668 of sq. ft of land.   Both of them entered into construction agreement on 16.6.2007.  It was agreed that the opposite party shall provide maintenance for maximum period of 10 months after completing the proposed building.  The charges were agreed at Rs.2 per sq. ft. per month with the provision of 15% increase every two years it was also agreed that the complainant will be depositing a sum of Rs.20376/- towards one time interest free refundable caution deposit for common monthly maintenance charges.  

2.     The agreement also contented the clause that he has to deposit another amount of Rs.1,00,000/- towards one time interest free deposit (corpus fund ) towards major expenditure in maintaining the building and to be transferred to the resident’s association at the time of completion of contract period.   After payment of the required amount the undivided share of land of 576 sq ft was registered in this name on 9.4.2007.   He had paid all amounts and obtained a No due certificate on 28.5.2009. While handing over the possession on 28.5.2009 he was asked to enter into a supplemental agreement incorporating modification in maintenance period.    The amendment is “ the parties hereby maturely consent and understand that builder share maintain the project complex only for two years from the date of handing over the flat to the allottees.    After that the builder will not be responsible for the maintenance for the complex.  One additional condition was also incorporated in the supplemental agreement which reads “ the builder shall transfer the corpus fund collected from the allottees to the Apartment Owners Association at the time of completion of two years maintenance period.   However the builder is entitled to deduct the dues if any towards monthly maintenance from the maintenance deposit and or corpus fund (interest free) shall be transferred to the association.”   The reduction in maintenance period was a unilateral decision taken by the opposite party and imposed on the complainant  at the eleventh hour.    The complainant felt this clause was not well thought of as it will certainly taken more than a year to complete all the remaining blocks and start a maintenance.  Hence the complainant wrote a letter to the opposite party on 1.10.2010 seeking the details and clarification.   But the opposite party failed to provide any reply.  But started collecting maintaining charges with effect from 1.2.2011.  The complainant paid the charges promptly upto 31.12.2012 for 23 months and he received the claim for another three months i.e. from January 2013 to March 2013 but the complainant paid one month charges on 9.3.2013 with a request to the opposite party to justify their claim without any fresh understanding.   But there was no response.   Even though the association was formed in September 2011 the opposite party did not hand over the maintenance and corpus and maintenance deposits to the association on expiry of two years period.     Subsequently the complainant paid remaining charges for another three months on 19.8.2013  the opposite party neither claimed for payment of maintenance charges  subsequently nor replied to this letter.  When the complainant was informed by the residents  association that the opposite party is likely to adjust the maintenance deposit towards charges payable for the period from July to December 2013 the complainant wrote to the opposite party on 7.1.2014 conveying his disagreement and stating that he is also entitled to claim refund of such amount with damages.    The complainant fully aware that the supplemental agreement provides for recovery of dues from the deposits held but the opposite party must establish the dues first by raising a demand if not paid conveying their intention to recover them out of the deposits held.   Without claiming the charges the opposite party cannot act on their own.   The opposite party had also admitted in their mail dated 28.5.2014 that they have not raised the invoice.   Formation of Apartment Owners Association was registered on 21.9.2011. As per the terms of agreement the corpus and maintenance deposit amount should be transferred after completion of two years but they have not done so.  Hence the complainant has filed the above complaint to transfer a sum of Rs.20,376/- being the maintenance deposit held and also the corpus deposit for Rs.1,00,000/- together with interest at 24% per annum from 1^st February 2013 to till the date of payment along with compensation.         

3.     Even after receipt of the notice, the opposite party did not file written version. Hence, the opposite party were set exparte on  13.4.2015.  The complainant filed proof affidavit.  Exhibits A1 to A19 were marked on the side of the complainant,  Written arguments of complainant  also filed.

4.  The points that arise for consideration are as follows:-

     1)  Whether there is any deficiency in service on the part of the

          opposite   party?

 

 2)  To what relief the complainant is entitled to?

5.    Point Nos.1 & 2:- 

        The complainant in this case, entered into a construction agreement with the opposite party on 15^th March 2007.   It was agreed that the opposite party shall provide maintenance for a maximum period ten years after completing the proposed building.   It was agreed that a sum of Rs.20,376/- will be deposited by the complainant towards one time free refundable caution deposit for common monthly maintenance charges.  It also contained a clause that the complainant should deposit another amount of Rs.1,00,000/- towards one time interest fee deposit (corpus fund) towards major expenditure in maintaining the building and to be transferred to the Residents Association at the completion of maintenance contract period.   After the entire amount was paid no due certificate was issued by the opposite party on 28.5.2009 while handing over the possession of the apartments.  During that time another supplemental agreement was entered between them with an amendment that  the opposite party shall maintain the project complex only for two years from the date of handing over the flat.  Further the opposite party shall transfer the corpus fund to the apartments owner’s association at the time of completion of two years.   However the builder is entitled to deduct the dues if any towards monthly maintenance from the maintenance deposits or corpus fund and balance sum shall be transferred to the association.  The opposite party started collecting maintenance charges w.e.f. 1.2.2011 and completed to February 2013. The complainant paid the maintenance charges upto December 2013 for 23 months.   But the opposite party claimed for another three months from January 2013 to March 2013.   At the request of the resident’s association the complainant paid the maintenance charges for the period from April 2013 to June 2013. The complainant contents that even though Apartment owner’s Association was formed in September 2011   the opposite party did not handover the maintenance and not transferred the corpus fund and maintenance to the association on expiry of two years as per the terms and conditions of the agreement.   But the association informed to the complainant that the opposite party is likely to adjust the maintenance deposit towards the charges payable for the period July to December 2013 for which the association also sent a statement of account that the opposite party had adjusted the maintenance charges from the caution deposit.   As per the supplemental agreement the opposite party will not be responsible for the maintenance of the complex after two years.     The complainant also wrote letter to the opposite party on 7.4.2014  to refund all such amount.  Since no response  the complainant filed the above complaint  to immediately transfer Rs.20,376/- being the maintenance deposit and also the corpus deposit of  Rs.1,00,000/-  with interest from 1^st February 2013 with compensation.

 

6.     It is evidenced through Ex.A3 that the complainant entered into a construction agreement with the opposite party wherein it is agreed that Rs.1,00,000/- should be paid as one time interest free deposit as corpus fund towards major expenditure in maintenance and provide maintenance for a maximum period of ten years and shall be transferred to the association at the time of completion of contract period. Further a sum of Rs.20.376/- should be paid as one time interest fee refundable caution deposit.  As such the complainant paid everything and obtained no due certificate which is evidenced through Ex.A5.   Further  it is also evidenced through Ex.A4 namely the supplemental agreement  that the opposite party shall maintain the project  for two years and on the  expiry

of the said period the entire maintenance will be taken over by the Apartments owner’s association and as per clause-3 of the agreement the builder shall transfer the corpus fund to the association at the completion of two years but the builder is entitled to deduct the dues if any towards monthly maintenance charges from the deposit amount and the balance sum shall be transferred to the association.    

7.     The complainant contents that the opposite party started collecting maintenance charges w.e.f. 1.2.2011 he had paid the entire maintenance charges for two years.  The residents association was formed in September 2011 but the opposite party failed to hand over the maintenance to the Association  after the expiry of two years without transferring the caution deposit of Rs.20,376/- and corpus fund of  Rs.1,00,000/- to the association.   But at request of the association through email dated 14.8.2013 that as per service tax rules association they should collect the maintenance charges together with service tax and as such they must get registered with the Government hence the maintenance charges will be collected by the opposite party and the maintenance will be transferred by 30^th  September 2013.   As such he paid the maintenance charges from April 2013 to June 2013.  

 

8.     The complainant contents that without any demand for maintenance charges from July 2013 to December 2013  the opposite party  deducted the maintenance charges from the caution deposit violating the terms of agreement vide statement of account namely Ex.A13.  The above contention of the complainant is acceptable since the opposite party had not handed over the maintenance to the association. 

9.     Therefore the contention of the complainant that the opposite party ought to have transferred the deposits to the association but they had failed to do so is acceptable but the complainant had not produced any proof that he had paid the maintenance for the period July 2013 to December 2013.   As per the terms of agreement only the corpus fund of Rs.1,00,000/- has to be transferred to the association whereas there is a condition that the maintenance charges can be adjusted from the caution deposit of Rs.20,376/-.  Here since the complainant had not paid the maintenance charges from July 2013 to December 2013 the same was adjusted from the deposit at the request of the association vide Ex.A15 & Ex.A19. Hence the contention of the complainant that the said caution deposit for maintenance charges should be transferred to the association is not acceptable.

10.    As per the agreement the opposite party is bound to transfer the corpus fund to the association after the expiry of two years.  It is evidenced through Ex.A9 that the association was formed in 2013 itself but the contention of the complainant that the association was formed in September 2011 is not acceptable since he has not produced any document to prove the same.  Whereas Ex.A9 proves that Association had sent email to resident that opposite party will transfer the corpus fund and maintenance to Association by 30.9.2013.  As such the opposite party ought to have transferred the corpus fund of Rs.1,00,000/- to the residents association by 30^th September 2013 itself but they failed to transfer the corpus fund which amounts to deficiency of service.

11.    Hence a sum of Rs.1,00,000/- remain with the opposite party till today without transferring to the association which proves that the opposite party violated the terms of agreement and as such the opposite party committed deficiency of service is acceptable. 

12.      The complainant contents that he had filed this complaint in the capacity of the member of the association.  As such the relief sought for to transfer the corpus fund to Association is maintainable as per terms of agreement.    Hence the opposite party is liable to transfer the corpus fund of Rs.1,00,000/- received from the complainant to the Association.   

11.    Whereas the relief claimed by the complainant for transfer of Rs.20,376/- being the maintenance deposit cannot be granted since the maintenance charges for the period July 2013 to December 2013 has been adjusted from the deposit at the request of the association vide Ex.A19. 

13.   As far as the  relief mentioned in serial number c) in the prayer is concerned the complainant has not produced any proof for the same and as such it is not maintainable.

14.    There is no contra evidence on the side of the opposite party.  Since the opposite party has remained exparte in this proceedings.        

15.    From the above facts and circumstances we are inclined to allow the complaint in part and the opposite party is directed to transfer the corpus fund of Rs.1,00,000/- to the Residents owner’s association namely Lumbini Square Owner’s Association  as admitted by the Association in Ex.A9 along with interest at the rate of 9% per annum w.e.f. 30^th September 2013  to till  the date of realization.  Since  interest is awarded on the claim amount we are not inclined to award any compensation and the opposite party is also directed to pay a sum of  Rs.2500/- as litigation charges to the complainant and points 1 & 2 are answered in favour of the complainant.

        In the result the complaint is allowed in part, the opposite party is directed to transfer the corpus deposit of Rs.1,00,000/- (Rupees one lakh only) paid by the complainant to the Lumbini Square Owners Association  along with interest at the rate of 9% per annum w.e.f. 30^th September 2013  to till the date of realization and also directed to pay a sum of Rs.2500/- (Rupees two thousand and five hundred only)  as litigation charges to the complainant within six weeks from the date of this order.    

           Dictated directly by the Member-II to the Assistant, transcribed and computerized by her, corrected by the Member-II and pronounced by us in the open Forum on this the 24^th  day of July   2015.

 

MEMBER-II                                                       PRESIDENT.

Complainant’s Side Documents:-

1.         -        - Copy of Sale deed

Ex.A2-  15.3.2007    - Copy of Agreement for sale deed

Ex.A3- 15.3.2007    - Copy of  un-Reg. Construction agreement.

Ex.A4-  28.5.2009   - Copy of un-Regd. Supplemental agreement.

Ex.A5-  28.5.2009   - Copy of No dues certificate.

Ex.A6- 1.10.2010    - Copy of letter sent to the opposite party.

Ex.A7- 9.3.2013      - Copy of letter enclosing cheque for Rs.3816/-

Ex.A8- 29.4.2013    - Copy of letter reminder to the opposite party.

Ex.A9- 14.8.2013    - Copy of Resident’s association email communication.

Ex.A10- 7.1.2014    - Copy of letter to the opposite party.

Ex.A11- 11.1.2014           - Copy of letter to the opposite party.

Ex.A12- 3.2.2014    - Copy of letter to the opposite party.

Ex.A13- 21.5.2014   - Copy of email  from Residents Association.

Ex.A14- 27.5.2014           - Copy of email to the opposite party.

Ex.A15- 28.5.2014   - Copy of opposite party reply.

Ex.A16- 29.5.2014   - Copy of email from the complainant to the opposite party.

Ex.A17- 30.5.2014   - Copy of opposite party reply email.

Ex.A18- 30.5.2014   - Copy of opposite party reply email.

Ex.A19-  21.7.2014  - Copy of opposite party letter to Residents association.

 

 

 

Opposite parties ‘ Documents :    .. Nil ..   (exparte)

 

 

 

MEMBER-II                                                       PRESIDENT.