Tamil Nadu

North Chennai

62/2014

Prakash.C.Sacheti,S/o.I.C.Sacheti - Complainant(s)

Versus

DLF,Souther Homes PVT Ltd - Opp.Party(s)

G.Dilip Kumar

10 Dec 2021

ORDER

 

                                                                     Complaint presented on : 27.03.2014

                                                                      Date of disposal            : 10.12.2021

                                                                                   

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

                PRESENT: THIRU. J. JUSTIN DAVID, M.A., M.L.              : PRESIDENT

                        THIRU. S. BALASUBRAMANIAN, M.A., M.L.          : MEMBER

 

C.C. No.62/2014

 

DATED THIS FRIDAY THE 10^th  DAY OF DECEMBER 2021

                                

Prakash C.Sacheti,

Son  of  I.C.Sacheti,

No.4, Bharathi Nagar 4^th Street,

T.Nagar,

Chennai – 600 017.

 

                                                                                               …..Complainant

 ..Vs..

1.DLF Southern Homes Pvt Ltd.,

Having its Registered office at

P-39, New Delhi South Extension,

New Delhi- 110 049.

 

2.DLF Southern Homes Pvt.Ltd.,

Having its Zonal Office at

Old No.828, New No.268,

Poonamallee High Road,

Kilpauk, Chennai – 600 010.

 

.....Opposite Parties

Counsel for Complainant                   : M/s.G.Dilip Kumar and another

 

Counsel for   opposite parties              : M/s.Aiyar and Dolia

ORDER

 

THIRU. J. JUSTIN DAVID, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to pay the sum of Rs.2,39,085/- calculated at Rs.5/- per sq.feet of super built up area of 2079 sq.feet per month from May 2012 till the date of filing of this complaint and to pay a sum of Rs.5,00,000/- as compensation for mental agony with  cost of the complaint.

1.THE COMPLAINT IN BRIEF:

           The complainant along with his wife Mrs.Chandra sacheti have entered in to a Sale Agreement dated 30.11.2010 with the opposite parties for purchase of an apartment bearing No.4, 8^th Floor, Building No.7, measuring super area of about 1986 sq.feet in their project known as “Garden City”- DLF OMR, Chennai for a sum of Rs.68,78,800/-. The said Super Area was revised from 1986 sq.feet to 2079 sq.feet as per the letter dated 10.08.2012 from the opposite party. He has paid the entire sale consideration as per the payment schedule in annexure – III of the aforesaid Sale Agreement dated 30.11.2010. However, the opposite parties have failed and neglected to hand over  the possession of the apartment and also to execute and register the sale deed in his favour. The opposite parties instead of fixing a date for registration of sale deed are demanding a sum of Rs.5,57,025/- towards registration charges and a sum of Rs.1,03,950/- towards interest bearing Maintenance Security Charges which sum the complainant is ready and willing to pay provided the opposite parties fix a date for registration of sale deed  in his favour. As per clause 11(a) of the sale agreement, the apartment ought to have been handed over to the complainant within a period of 15 months from the date of the sale agreement i.e before April 2012 including two months grace period, but till date the apartment has  not been handed over. Further as per clause 14 of the sale agreement, the opposite parties are liable to compensate the complainant at Rs.5/- per sq.feet per month i.e. Rs.5 x 2079 sq.feet (super area) = Rs.10,395/- per month for the delay in handing over possession of the  apartment and thereby the opposite party are liable to pay the compensation from May 2012 to till date @ Rs.10,395/- i.e a sum of Rs.2,39,085/-. The complainant has also paid a sum of Rs.5,01,351/- on 26.02.2013 in addition to the total sale price as demanded by the opposite parties towards TTL calculated at Rs.241.45 per sq.feet. The opposite parties inspite of receiving and acknowledging the said letter has sent a reply dated 04.12.2012 only reiterating their demand for a sum of Rs.6,74,662/- (Rs.5,57,025.00 Registration Amount+Rs.1,03,950.00 towards Interest Bearing Maintenance Security + Rs.13687.00 TDS) without informing or fixing any date for the registration of the sale deed. The complainant was put to unnecessary mental torture and agony. The complainant therefore prays that this Hon’ble Forum may be pleased to direct both the opposite parties to pay the compensation of Rs.2,39,085/- calculated at Rs.5/- per sq.feet of super built up area of 2079 sq.feet. per month from May 2012 till the date of filing of this complaint and the recurring future compensation till the date of handing over possession of the apartment in consonance with clause 14 of the sale agreement and  to direct the opposite parties to handover the possession of the schedule flat to the complainant as per the terms of the sale agreement dated 30.11.2010 and to pay the compensation of Rs.5,00,000/- towards the mental agony and hardship suffered by the complainant by the act of deficiency in service by the opposite parties and to pay cost of this complaint.

 

2.WRITTENVERSION FILED BY THE OPPOSITE PARTIES IN BRIEF:

The opposite parties states that as per Clause.54 of Apartment Buyers Agreement and in the light of the bar contained in Section 8 of Arbitration and Conciliation Act, 1996, this Hon’ble Forum cannot entertain the present complaint and the parties must be referred to arbitration proceedings by dismissing the present complaint. The complaint has been filed against two opposite parties viz 1^st opposite party being the Register Office address and the 2^nd opposite party being the Zonal Address of the opposite party which needs to be amended by the complainant as one opposite party as both the opposite parties are one at the same. The complainant alone has filed this complaint without adding the co-applicant Mrs.Chandra Sachet as party to this complainant and thus this complaint cannot be admitted and maintainable before this Hon’ble Forum. In fact, the complainant admits that he has to pay the Registration charges, Maintenance and Security Charges which are in addition to the total sale consideration for registering the property in the complainant’s name, has willfully defaulted from paying the specified amount to the opposite party and insisted the opposite party to register the sale deed in his favour without paying the specified amount due to the opposite party and approached this Forum with unclean hands. The opposite party had also sent several email communications and made several phone calls to the complainant requesting him to pay the due amount of Rs.5,57,025 and Rs.1,03,950/- as per the terms of the Apartment Buyers’s Agreement dated 30.11.2010 which will enable the opposite party to proceed to fix the registration procedures of the apartment. Inspite of several reminders and communications the amount of Rs.5,57,025 and Rs.1,03,950/- has been due and remains outstanding till date by the complainant.Moreover the clause 14 clearly says that the compensation, if any, shall be done only at the time of execution of the conveyance deed of the apartment. The complainant taking this clause into account, is trying to evade from paying the due amount of Rs.5,57,025/- and Rs.1,03,950/-to the opposite party. The opposite party in order to facilitate the process of registration the amount payable/outstanding by the complainant have to be paid to the opposite party for fixing the date of registration and carrying out the registration of Conveyance Deed  of the Apartment. As per the clause 1.12 of the Apartment Buyer’s Agreement dated 30.11.2010, the complainant has agreed to make all payments and all deposits including stamp duty registration charges and all other incidental legal expenses for the execution and registration of the conveyance deed in favour of the complainant. Hence it is evident that the complainant is required to make the necessary due amounts of Rs.5,57,025 and Rs.1,03,950/- to the opposite party in order to take up the registration procedures of the apartment in the complainant’s name. Hence the opposite parties has not committed any deficiency in service and prays to dismiss the complaint with costs.

3. POINTS FOR CONSIDERATION:

1.Whether there is deficiency in service on the part of the opposite parties?

2. Whether the opposite parties are liable to hand over possession of the flat to the complainant?

3.Whether the complainant is entitled for compensation of Rs.2,39,85 from May2012 to the date of filing the complaint and future compensation till the of handing over possession?

4. Whether the complainant is entitled for compensation and cost?

5. To what other relief, the complainant is entitled?

 

 

4. POINT NO: 1

          The complainant and his wife Chandrasacheti have entered into a sale agreement with a opposite parties for purchase of apartment bearing No.4, 8^th floor building No.7 measuring super area of above 1986 sq.ft in the project known as garden city DLF, OMR Chennai for a total sum of Rs.68,78,800/-  on 30.11.2010 . Ex.A1 is the copy of agreement for sale dated 30.11.2010 entered into between the complainant and opposite parties.  The super area was revised from 1986 sq.ft to 2079 sq.ft. as per letter dated 10.08.2012. Ex.A2 is the  copy of letter dated 10.08.2012 written by the opposite parties to the complainant by revising the  area from 1986 sq.ft to 2079 sq.ft.

          05. The complainant alleged that he paid the entire sale consideration as per payment schedule mentioned in annexure 3 of the sale agreement dated 30.11.2010.  There is no dispute between both the parties about the payment schedule and payment made by the complainant to the opposite parties. The complainant further alleged  as per clause 11 a of the sale agreement the opposite parties ought to have handed over possession of the flat within a period of 12 months from the date of sale agreement. Further as 11 (a) of the agreement reads as follows. The Company  based on the present plans and estimates and subject to all just exceptions endeavors to complete construction of the Said Building/Said Apartment within a period of 15 months from the date of execution of this Agreement unless there shall be delay or failure due to Force Majeure conditions including but not limited to reasons mentioned in clauses 11 (b), 11(c) and clause 42 or due to failure of Allottee(s) to pay in time the Total Price and other charges and dues/payments mentioned in this Agreement or any failure on the part of the Allottee(s) to abide by all or any of the terms and conditions of this Agreement. The sale agreement executed on 30.11.2010 and therefore as per 11 (a) of the sale agreement the possession of the flat ought to have been handed over to the  complainant before April 2012. But so far the opposite parties has not handed over the flat to the complainant.

          06. The complainant on 09.10.2013 written a letter to the opposite parties stating that he paid the entire agreed amount and final amount also paid as per demand notice issued by the opposite party dated 28.05.2013, but there is no response for registration of sale deed. Ex.A4 is the copy of letter dated 09.10.2013 by the complainant to the opposite parties. The opposite parties issued a letter dated 28.05.2013 to the complainant demanding balance amount of  Rs.19,45,725/- and same has been as Ex.B1. But the complainant in his letter dated 09.10.2013 clearly stated that the paid the final demand payment dated 21.05.2013. The complainant paid the final amount on 27.06.2013.  Ex.A3 is the copy of letter dated 23.08.2013 written by the complainant to the opposite parties. Thereafter the opposite parties send e-mail letter to the complainant stating registration charge of Rs.5,57,025/- will be paid one week prior to the registration and security charges of Rs.1,03,950/- will be paid at the time of possession.  Further the opposite parties agreed to  pay Rs.5 per sq.ft for 20 months amount into 2,07,900/. Therefore there is delay in completion of the building and opposite parties agreed to pay delayed possession charges for 20 months.  The complainant a sent a reply on 21.10.2013 stating registration charges cannot  paid in advance, maintenance charges will be at the time of possession and additional charges cannot be payable. The said letter has been marked as Ex.A6. Thereafter the opposite parties  demanded  a sum of Rs.6,74,662/- on or before 7^th January 2014. Ex.B4 is the copy of the letter. In the letter the opposite  parties demanded balance Final Demand of Rs.5,70,712/- VAT of  Rs.1,26,819/- IBMS of Rs.1,03,950/- and maintenance for 6 months Rs.35,550/-. The complainant alleged the opposite parties without fixing the date of the registration of sale demanded Rs.5,57,025 towards registration charges and sum of Rs.1,03,950 towards interest  and  maintenance security charges.

           07. On perusal of documents filed on the side of the complainant and the documents filed off on the side of opposite parities this commission finds that there is delay in handing over possession of the flat to the complainant. The  complainant as per  payment schedule mentioned in the agreement paid the entire amount, whereas the opposite parties unable to complete the construction within the time as per the agreement and so far not handed over possession of the flat to the complainant. The above act of  opposite parties amounts to deficiency in service and same caused mental agony and financial loss to the complainant. The opposite parties duty bound to compensate the complainant. The agreement also contains a clause for payment of compensation if there is delay in handing over possession of the flat. Clause 14 of the sale agreement reads as follows: The Allotte agrees and understands that if the company is unable to give possession within the period as mentioned above or such extended period as permitted under this Agreement, due to reasons other than those mentioned in this Agreement, then the company agrees to pay only to the Allottee and not to anyone else, subject to the Allottee, not being in default under any terms of this Agreement compensation@ Rs.5/- per sq.feet of the Super Area of the Said Apartment per month for the period of such delay. The adjustment of such compensation shall be done only at the time of the execution of the Conveyance Deed of the Said Apartment to the Allottee first named under this Agreement and not earlier. As per clause 14 of the agreement, the opposite parties is liable to pay Rs.5/- per  sq.ft towards compensation  for the delay period. The possession of the flat ought to have given to the complainant before April 2012  but so for the opposite parties not handed over possession to the complainant. Further total area of the flat is 2079 sq.ft. The opposite parties liable to pay at the rate of Rs.5/- per  sq.ft. for every month. Therefore the opposite parties liable to pay Rs.5 per sq.ft  for the total area 2079 sq.ft (Rs.2079 X 5 = 10395) per month from May 2012 to till the date of handing over possession.

           08. Regarding the payment of registration charges and maintenance charges the complainant ready to pay the registration charges at the time of execution of sale deed and ready to pay   the maintenance charges at the time of handing over possession of the flat. The registration charges is payable by the complainant to the government and the maintenance is payable to the complainant to the  flat owner welfare association. The complainant also agree to pay the amount at the time of execution of the sale deed and therefore the question of payment of registration  charges in advance does not arise.

           09. The opposite parties in their written version contended that  there is an arbitration clause in the agreement and therefore this complaint is not maintainable. The Consumer Protection Act 1986 section 3 clearly says that this law is in addition any other law. The Consumer Protection Act 1986 was repeated and new act was enacted and known as Consumer Protection Act 2019. Section 100  of the Act reads as follows: The Provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Therefore the provision of the act shall be in addition to the provision of any other law.  The complainant filed by the complainant is maintainable before this Commission.

          10. The opposite parties being the builder violated the condition mentioned in the sale agreement by delaying the construction and by not handing over possession of the flat to the complainant inspite of the complainant paid entire cost of the building as per agreement. The above attitude of the opposite parties amount to deficiency in service. Hence there is deficiency in service on the part of the opposite parties.

11. POINT NO. 2 to 4

          The opposite parties  in his letter dated 19.10.2013 agreed to pay late possession charges for 20 months upto September 2013. Thereafter till date the opposite parties have not handed over of the possession of the flat to the complainant. Therefore the complainant is entitled for compensation of Rs.5/- sq.ft for the total area 2079 sq.ft  Rs.5 X 2079 = 10395 per month  from May 2012 to till the date of handing over possession . Further the complainant paid the entire agreed amount and therefore the opposite parties liable to hand over possession of the flat to the complainant.

          12. The complainant is claiming a compensation of Rs.5,00,000/- for caused mental agony for hardships. The act of the opposite parties in not handing over possession of the flat to the complainant would definitely caused mental agony to the complainant. Under these circumstances and for reasons stated in point No.1 the opposite patties are liable to hand over the possession of the flat the complainant and the complainant is entitled for compensation of Rs.50,000/- and cost of Rs.10,000/-

13.POINT NO.5

In the result this complaint is allowed in part. The opposite parties 1 & 2 are jointly and severally directed to hand over possession of the flat bearing No.4, 8^th Floor, Building No.7  in the project known as “Garden City- DLF OMR” Chennai, within two months from the date of this order and the opposite parties 1 & 2 are further jointly and severally directed to pay a sum of Rs.10,395/-(Ten thousand three hundred and ninety five only) per month towards compensation for delay in handing over possession of flat from May 2012 to till the date of handing over possession of the flat to the complainant.

 The opposite parties 1 & 2 are jointly and severally directed to pay a sum of Rs.50,000/-(Fifty thousand only) towards compensation for causing mental agony besides a sum of Rs.10,000/-(Ten thousand only) towards cost of this proceedings to the complainant within 2 months from the date of receipt of order, failing which the opposite parties are liable to pay interest at the rate of 9% per annum for the  above total  amount 60,000(50,000+10,000)  from the date of order till the date of payment to the complainant.         

Dictated  by the President to the Assistant taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Commission on this the 10^th  day of  December  2021.

 

MEMBER – I                                                                PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 30.11.2010                   Apartment Buyers’s Agreement

Ex.A2 dated 10.08.2021                   Letter from opposite party to complainant

Ex.A3 dated 23.08.2013                   Letter from complainant to opposite  party

Ex.A4 dated 09.10.2013                   Letter from complainant to opposite  party

Ex.A5 dated         19.10.2013           E-mail from complainant to opposite party

Ex.A6 dated 21.10.2013                   Letter  from complainant to opposite party

 

Ex.A7 dated 04.12.2013                   Letter from complainant to opposite party

Ex.A8 dated 11.12.2013                   Email from complainant to opposite party

Ex.A9 dated 12.12.2013          Lawyer’s notice from counsel of complainant to the opposite party

 Ex.A10 dated 16.12.2013       Acknowledgement

Ex.A11 dated  03.01.2014       Letter from complainant to opposite party

LIST OF DOCUMENTS FILED BY THE   OPPOSITE PARTIES:

 

Ex.B1 dated 21.05.2013                   Final Statement of Accounts

 

Ex.B2 dated 18.10.2013          E-mail of opposite parties to complainant demanding the balance payable  and clarifying the complainant on other issues

 

Ex.B3 dated 01.01.2014          E-mail with final notice for payment of balance amount sent to complinant by the opposite parties

 

Ex.B4 dated 05.08.2015          Series of mails exchanged between complainant

04.08.2015, 01.08.2015          and opposite parties on various issues viz, to clear

28.12.2015, 27.12.2015          dues disclosing amounts to be paid by complainant

26.12.2015, 11.08.2015          etc.,

 

Ex.B5 dated 28.05.2013          Letter from opposite parties to complainant informing the readiness of the apartment to be handed over and requesting complainant to comply with payments and documentations to enable to the opposite parties to hand oveer paratment

 

Ex.B6 dated NIL                      Chartered Accountant Certificate

 

Ex.B7 dated 13.04.2012          Lletter from opposite parties to complainant informing change in super are and tax clarification

 

Ex.B8 dated 19.02.2016          Delayed Interest Statement

 

Ex.B9 dated NIL                      Chartered accountant certificate for balance in VAT

 

 

 

MEMBER – I                                                               PRESIDENT