Tamil Nadu

South Chennai

CC/4/2020

Mrs. Zainab Krishnamoorthi, and 1 other - Complainant(s)

Versus

Civil Engineering Enterprises, Rept. By its Proprietor Mr. M.A.Salim, - Opp.Party(s)

M/s C.D.Sugumar

26 Aug 2022

ORDER

Date of Complaint Filed :31.12.2019

Date of Reservation      : 29.07.2022

Date of Order               : 26.08.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

 

CONSUMER COMPLAINT No. 4/2020

FRIDAY, THE 26^th DAY OF AUGUST 2022

Mrs. Zainab Krishnamoorthi,

27/A, Mcwilliam Street, Springvale, VIC 3171,

Australia,

Represented by her husband and power of attorney,

Mr. T.Jaganathan,

S/o Thulasiraj,

No. 853, N.V.N Nagar, 8^th Street,

Thirumangalam, Anna Nagar,

Chennai-600040.                                                                                                                                                                    ... Complainant                    

..Vs..

Civil Engineering Enterprises,

Rep. by its Proprietor Mr. M.A.Salim,

No.22A, K.K. Salai, Kaveri Rangan Nagar,

Saligramam,

Chennai-600093.                                                                                                                                                                ...  Opposite Party

 

******

Counsel for the Complainant          : M/s. C.D. Sugumar

Counsel for the Opposite Party       : Exparte

 

        On perusal of records and on endorsement made by the Complainant to treat the written arguments being treated as oral arguments of the Complainant, we delivered the following:

ORDER

Pronounced by Member-I, Thiru. T.R.Sivakumhar, B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to handover possession of the construction and to pay Rs.4,00,000/- as damages for causing acute mental tension and unnecessary harassment to the Complainant and to pay a sum of Rs.25,000/- as litigation charges.   

2.     The averments of Complaint in brief are as follows:-

The Complainant submits that she purchased a property at Plot No: 2-B, measuring to an extent of 940 Sq.ft, duly approved by the CMDA with planning permit No:9913 vide letter No.5203/05 A3, dated 27.12.2005, in survey No:63, as per sub division survey No.63/2, New Patta No.712 and Patta Survey No.63/17B, situated at Sivam Nagar, Thundalam Village, Maduravoyal Taluk, Tiruvallur District from Mr. Mangilal Teli, represented by his power of Attorney Mr.S.Sunil, through a registered sale deed dated 10.01.2018 with registration No.673 of 2018 registered at the office of the SRO office at Saidapet. Further the Complainant submits that the Opposite Party is a civil engineer and involved in the business of civil construction, therefore the complainant has entered into a registered construction agreement with the Opposite Party dated 10.01.2018 with registration No.674 of 2018 registered at the office of the SRO at Saidapet for construction an independent house in the above said property measuring to an extent of 1410 sq.ft. plinth area, covering the Ground floor & First floor with Hall, Bedroom, Study, Pooja, Kitchen & Two Toilets in the Ground Floor and Hall, Bedroom, Study, Kitchen, Balcony, Service & Two Toilets along with stairs in the First floor and a Head Room. Accordingly the opposite party has agreed to complete the construction within six months from the date of construction agreement i.e. on 10.01.2018 with the total construction cost of Rs.90,77,500/- out of which the Complainant paid a sum of Rs.73,85,000/- by borrowing from M/s State Bank of India assuming that the Opposite Party will complete the construction within the said period, however the Opposite Party have not completed the construction even after lapse of 13 months due to which the Complainant facing hardship by paying interest for the amount that has been paid to the Opposite Party towards construction.

Moreover the Complainant states that the construction has to be completed within six months from the date of agreement. The total construction cost is Rs 57,48,500/- as per the agreement hence availed a sum of Rs.68,00,000/- from State Bank of India, the agreement is that the Opposite Party can ask for release of funds by showing periodical progress of the construction. However, the Opposite Party without even completing 65% of the construction has got funds released from the bank to the tune of Rs 63,85,000/-. The last installment towards construction cost of Rs 4,15,000/- is in the bank and the Opposite Party can get the same after showing completion certification and photograph of the construction to the bank. The obligation of payment of land cost to the Opposite Party will arise only after the completion of the construction. The total construction cost received by the Opposite Party after adjusting the amount for the cost of land, will be around Rs.41,48,500/-. Simultaneously the Opposite Party is doing the same even with the other parties by utilising the allotted funds for construction to some other purpose instead of completing the project in the stipulated timeline further the quality of construction is also not up to the mark and not worth the money paid. Henceforth Complainant opted to redress this issue by sending a legal notice dated 29.08.2019 to the Opposite Party who is liable for deficiency of service and unfair trade practice by giving hardship in paying interest for the money borrowed. Hence, the Complaint.

3.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-5  were marked.

4.     In spite of sufficient notice served on the Opposite Party , the Opposite party failed to appear before this commission and they have been called absent and set Ex-parte.

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No 1 :-

It is an Undisputed fact that the Complainant and the Opposite Party entered into a construction agreement on 10.01.2018 with registration No.674 of 2018 registered at the office of the SRO at Saidapet for constructing an independent house as per Ex.A-3 with the terms and conditions are as follows (i) Agreed to construct the independent house measuring to an extent of 1410 sq.ft. plinth area, covering the Ground floor & First floor with Hall, Bedroom, Study, Pooja, Kitchen & Two Toilets in the Ground Floor and Hall, Bedroom, Study, Kitchen, Balcony, Service & Two Toilets along with stairs in the First floor and a Head Room as mentioned in schedule-B (ii) Agreed to construct the Independent house using the recognized building materials, as mentioned in condition No.1 (iii) Agreed to complete the construction and deliver the independent house ready for occupation within 6 months CEE has agreed to complete the construction and deliver the Independent House ready for occupation within six months with proper three phase electricity connection, drainage facilities, drinking water facilities etc with proper three phase electricity connection , drainage facilities, drinking water facilities as mentioned in condition No.4.

The disputed fact is that the Opposite Party had not completed the Construction within the stipulated time of six months, as agreed upon in condition No.4 of the Registered Construction Agreement dated 10.01.2018, Ex.B-3.   The Complainant had availed loan from the M/S State Bank of India to meet out the construction cost to be paid to the Opposite Party by stage wise requirement on expectation that the construction will be completed within the stipulated time of 6 months, since the construction was not completed within stipulated time, which constrained the Complainant to cause a legal notice dated 29.08.2019 to the Opposite Party, the Opposite Party in response sent a reply notice dated 18.09.2019, marked as Exs.A-4 and Ex.A-5, respectively, wherein in the reply, the Opposite Party admits the fact that they failed to handover the property even after the lapse of 13 months, as found in Ex.A-5 reply notice dated 18.09.2019.

The lethargic and negligent act of the Opposite Party in not completing the construction within stipulated time inspite of having received the required payment from the Complainant and by not handing over the possession within the stipulated time clearly amounts to deficiency of service. Therefore, we are of the considered view that the Opposite Party had committed deficiency of service and unfair trade practice and thereby had caused serious mental agony to the Complainant. Accordingly, Point No.1 is answered.

Point No.2 and 3:-

        As discussed and decided Point No.1 against the Opposite Party, the Opposite Party is liable to hand over the possession of the Plot No.2-B, comprised in survey No.63 as per sub division Survey No.63/2, New Patta No.712 and Patta Survey No.63/17B, situated at Sivam Nagar, Thundalam Village, Maduravoyal Taluk, Tiruvallur Ditrict, to the Complainant in as in where is condition, to the Complainant, and to pay a sum of Rs.1,00,000/- towards deficiency of service as well as unfair trade practice and mental agony, and also to pay a sum of Rs.5000/- towards costs, to the Complainant. And the Complainant is not entitled for any other relief/s. Accordingly Point Nos.2 and 3 are answered.

In the result the complaint is allowed in part. The Opposite Party is directed to hand over the possession of plot “No.2-B, comprised in survey No.63, as per sub division survey No.63/2, New Patta No.712 and Patta Survey No.63/17B, situated at Sivam Nagar, Thundalam Village, Maduravoyal Taluk, Tiruvallur District”, in as is where is condition, to the Complainant, and to pay a sum of Rs.1,00,000/- (Rupees One Lakh Only)  towards deficiency of service as well as unfair trade practice and mental agony, and also to pay a sum of Rs.5000/- (Rupees Five Thousand Only) towards costs to the Complainant, within 8 weeks from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 6% p.a from the date of this order till the date of realisation.

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 26^th  of August 2022.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

 

Ex.A1	08.06.2017	Copy of Power of attorney
Ex.A2	10.01.2018	Copy of sale deed in favour of the Complainant
Ex.A3	10.01.2018	Copy of construction agreement between Complainant and the Opposite Party
Ex.A4	29.08.2019	Copy of Notice sent by the Complainant
Ex.A5	18.09.2019	Copy of reply by the Opposite Party

 

List of documents filed on the side of the Opposite Party:-

 

 

NIL

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT