Tamil Nadu

North Chennai

CC/407/2018

A.Anand Raj - Complainant(s)

Versus

EMAAR MGF LAND LTD - Opp.Party(s)

O.Padmaprakash

21 Oct 2021

ORDER

 

                                                                      Complaint presented on : 05.09.2012

                                                                       Date of disposal            : 22.10.2021

                                                                                  

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.407/2018

 

DATED THIS FRIDAY THE 22^nd DAY OF OCTOBER 2021

                                

A.Anand Raj,

Flat No.AL – 3,

Navin’s Brookesfield Apartments,

762, Medavakkam Main Road,

Nanmangalam,

Kovilambakkam Post,

Chennai – 600 117,

Represented by his Power of Attorney

Agent T.Arumugam.

                                                                                               …..Complainant

 ..Vs..

M/s. Emaar MGF Land Ltd.,

Rep. by its Manager,

No.93/45, 3^rd Floor, 1^st Avenue,

Indira Nagar, Adyar,

Chennai – 600 020.

....Opposite Party

Counsel for Complainant                   : M/s. O.Padmaprakash, C.Madanagopal

                                                          R.Srinivaas, G.Venkatesan,

                                                          G.Mohan&O.Ashwini Prakash

 

Counsel for  opposite party                  : M/s.K.Gowtham  Kumar,

                                                            G.Nivethitha

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 refund a sum of Rs.1,76,388/- together with interest and cost of the complaint.

This complaint was originally filed before the District Consumer Redressal Commission, Chennai (South) and taken on file in C.C. No.222/2012.  Thereafter, the said complaint has been transferred to this Commission as per the proceedings of the Hon’ble S.C.D.R.C. and taken on file as C.C. No.407/2018.

1.THE COMPLAINT IN BRIEF:

The opposite party promoted a residential project of apartments under the name and style of “Esplanade” at old No.7A, New No.75, VaidyanathaMudali Street, Tondiarpet, Chennai-600 081. The complainant approached the opposite party and booked a flat on 01.06.2008. The complainant and opposite party entered into an agreement for the purchase of  1030.81 square feet undivided in the land for Rs.12,36,972/-. On the same date the complainant and the opposite party entered into an agreement to construct a flat to the extend of 1653.59 square feet with one reserved car parking space in the said apartment. The complainant availed a loan  from the Indian Bank. The  opposite party also entered into a tri-partite agreement dated 04.09.2008 with the complainant and the Indian to secure the interests of the Indian Bank. The complainant made the payments for the undivided share in the land and the cost of construction of the flat. There was a minor delay raging between 5 to 12 days only in respect of 5 payments by the complainant. This was due to delay in disbursal of the loan amounts by the Indian Bank and not due to any slackness on the part of the complainant which fact was conceded by the opposite party in its e-mail dated 28.06.2011. However invoking article 7.2 of the sale agreement and Article 4.2 of the constructions agreement the opposite party collected a sum of Rs.14,963/- towards interest at 18% per annum for the delayed payments from the complainant. As per article 3.2 of the construction agreement, the flat should be delivered within 24 months from 21.01.2008 with a grace period of six months. As per article 3.6 of the construction agreement, in the event of any delay in delivery of the flat beyond this period the opposite party  is liable to pay a compensation of Rs.5/- per square foot of the built up area per month as rent. As per article 3.2 stated supra, the due date for handing over possession of the flat is 20.07.2010. However the opposite party intimately handed over the possession of the flat  on 19.08.2011 with a delay of 13 months. The opposite party is liable to pay a sum of Rs.1,49,482/- towards rental compensation claimed by the complainant. The act of the opposite party in handing over the flat with a delay of 13 months in spite of receiving the entire consideration well in advance of due dates amounts to deficiency of service. The complainant sent a notice dated 19.04.2012 to the opposite party demanding payment of the said sum of Rs.1,49,482/- from 06.09.2011. The opposite party received the notice and sent a reply dated 16.05.2012 falsely denying its liability to pay. The opposite party is now liable to pay the complainant a sum of Rs.1,76,388 together with interest at 18% per annum from the date of this complaint till payment in full as per the memo of calculation given below.  Hence this complaint.  

2.WRITTENVERSION FILED BY THE OPPOSITE PARTY IN BRIEF:

          The Opposite party is a company registered under the Companies Act. 1956. The above complaint filed by the complainant is perse not maintainable and is liable to be dismissed with exemplary costs. The complainant has failed to place the entire facts before this Hon’ble Forum and as such there can be no deficiency of service on the part of the opposite party. The complainant has conveniently suppressed the fact that he has been provided a 5% rebate amounting to Rs.2,87,666/-. The instant complaint is not maintainable before this Hon’ble Forum in as much as the complainant is seeking to agitate his grievances under the agreements entered in to between the parties  and the agreements provide for a dispute resolution mechanism. The complainant had to make the payments for the said unit in accordance with the payment schedule annexed with the application. In the event of delay in making the said payments by the complainant, opposite party in terms of article 4 of the Construction Agreement and Article 7 of the Sale Agreement could terminate the said agreement or charge compound interest @18%  per annum on the delayed payments and the interest would be calculated from the date the payment is due until the date of payment being made. The complainant failed to make the payments on time with respect to five  payments. There was a delay ranging between 5 to 13 days in making the above 5 payments. As per Article 7.2 of the Sale Agreement and Article 4.2 of the Construction Agreement whereby the complainant  paid Rs.14,928/- towards interest at 18% per annum for the delayed payments. The registration can only happen  on payment of 100% of the cost of the apartment. In fact article 3.1 of the agreement for sale clearly states that the conveyance of the undivided share in the land will be effeced in favour of complainant subject to complainant making the payments stipulated in the agreement for sale and the payment schedule set out in the Construction Agreement. As per Article 3.2 of the Construction Agreement the apartment was to be delivered within a period of 24 months, commencing from 21.01.2008, with  a further grace period of 6 months and as per Article 3.6 of the said agreement and in the event of any delay in delivery of the apartment beyond this period the Developer is liable to pay a compensation of Rs.5/- per square feet of the built up area per month as rent to the customer. However it is pertinent to mention here that as per Article 3.6 of the Construction Agreement the Developer  has a right to deny rental compensation and appropriate it against any loss sustained by it due to non compliance of the payment schedule by the customer. In  pursuance to article 3.6 of the Construction Agreement the complainant started demanding rental compensation of Rs.5/- per square feet from the opposite party. However it is important to note that the opposite party has repeatedly communicated to complainant is not eligible for the said compensation as he did not make all the payments for the said unit on time. It is denied that opposite party is liable to pay to complainant a sum of Rs.1,49,482/- towards rental compensation and interest for payments made in advance together with future interest at 18% per annum as alleged. It is reiterated that complainant is not eligible for the rental compensation due to the fact that complainant delayed in making payments for the said unit as already mentioned and the rental compensation is applicable only for those customers who have complied with the payment schedule and have made the payments on time. The remedy for the complainant for the acts mentioned therein is to seek remedies under the terms of the agreements and not before this Hon’ble Forum. The present complaint may be dismissed with exemplary costs.

3. POINTS FOR CONSIDERATION:

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

2.Whether the opposite party is liable to pay Rs.1,76,388/- to the complainant?

3.To what other reliefs, the complainant is entitled?

4. POINT NO :1& 2

The opposite party promoted a residential project of apartments under the name and style of “Esplanade” at old No.7A, New No.75, VaidyanathaMudali Street, Tondiarpet, Chennai-600 081. The complainant approached the opposite party and booked a flat on 01.06.2008. The complainant and opposite party entered into an agreement for the purchase of 1030.81 square feet undivided in the land. Ex.A1 is the agreement for sale dated 23.06.2008 entered into between the complainant and opposite party for the purchase of undivided share of land measuring 1030.81 square feet for Rs.12,36,972/-. On the same date the complainant and the opposite party entered into an agreement to construct a flat to the extent of 1653.59 square feet with one reserved car parking space in the said apartment. Ex.A2 is the construction agreement dated 23.06.2008 entered into between the complainant and the opposite party for the construction of 1653.59square feet building for a total consideration of Rs.44,85,248/-.

          5. The case of the complainant is that as per the agreement the flat should be delivered within 24 months from 21.01.2008 with a grace period of 6 months. The opposite party handed over possession of the flat on 19.08.2011 with a delay of 13 months. The complainant further alleged as per Article 3.6 of the construction agreement in the event of any delay in delivery of the flat beyond 20.07.2010 , then the opposite party is liable to play compensation of Rs.5/- per square feet of the built up area per month as rent. The opposite party not disputed the above delay, but contented that the opposite party handed over possession of the flat to the complainant on 22.07.2011 and not on 19.08.2011. The complainant has not filed any documents to show that the opposite party handed over possession of the flat on 19.08.2011, but the opposite party accepted that the possession of the flat was handed over to the complainant on 22.07.2011. Therefore as per the admitted version of the opposite party there is a delay of 12 months in handing over the possession of the flat to the complainant.

          6. The Complainant alleged that he paid the cost of construction with a minor delay ranging between 5 to 12 days in respect of 5 payments. On the other hand the opposite party contended that the complainant had to make payment according to the schedule annexed with the application and in the event of any delay in making the payment the opposite party can terminate the agreement or to charge compound interest at 18% per annum on the delayed payments. The complainant accepted there is minor delay between 5 to 12 days in making payments. As per the admitted version of both the parties the complainant paid the cost of construction in 10 payments. Out of 10 payment second payment delayed by 8 days third payment delayed by 5 days, fourth payment delayed by 5 days, fifth payment delayed by 12 days and the seventh payment delayed by 8 days. According to the complainant the delay is due to the disbursal of loan amounts by the Indian bank not due to the slackness of the complainant. Exhibit A3 is the tripartite agreement ended into between the complainant, the opposite party and Indian bank, Manager, East Abhiramapuram Branch. The complainant obtained loan of Rs.43,68,000/- from Indian bank east Abhiramapuram branch for the purchase of said flat. The bank has to pay the loan amount to the opposite party  directly and if there is any delay in payment, then the opposite party can approach the bank for payment in time and for which the complainant is not liable on the part of complainant there no delay in making the payment.

          7.The complainant and the opposite party entered into an agreement on 23.06.2008. as per the agreement the opposite party liable to handover the flat 20.07.2010. but the opposite party handover the possession on 22.07.2011. there is a delay of 12 months in handing over possession of the flat to the complainant. It is the duty of the opposite party to comply the terms and conditions mentioned in the construction agreement regarding the completion of construction within the stipulated period. But the Opposite party failed his duty in completing the construction within the stipulated period. The above attitude of the opposite party amounts to deficiency in service.

          8. As per Article 3.6 of the construction agreement in the event of any delay in delivery of the apartment beyond 6 months from the due date of completion stated in clause 3.2, the developer shall be liable to pay the purchaser, rental compensation at Rs.5/- square feet of built up area per month. The built up area is 1653 square feet. The compensation payable for the delay is Rs.5/- square feet per month. So the total rental compensation payable by the opposite party to the complainant is 1653 x 5= 8265 x12= 99180.

          9.  Further the complainant also paid a sum of Rs.14,963/- towards interest for delayed payment. Under these circumstances, the complainant entitled for rental compensation. Further the contention of the opposite party that as per the term of the agreement the complainant  cannot seek  remedies before this form is unsustainable, because  as per section 3 of the  Consumer Protection Act the complainant  has every right to approach this Commission. Therefore the above contention raised by the opposite party is unsustainable.

          10. The complainant issued letters to the opposite party for payment and thereafter on 19.04.2012 the complainant through his counsel issued legal notice to the opposite party to pay Rs.1,49,482/- towards rental compensation. The opposite party through his advocate issued reply notice to the complainant denying the payment. Therefore the complainant approached this commission for compensation regarding the delay in handing over the possession of the flat. The complainant through his proof affidavit and through  hisdocuments proved that there is 12 months delay in handing over possession of the flat and there is deficiency in service on the part of the opposite party. For the reason stated above there is deficiency in service on the part of the opposite party and the opposite party is liable to pay Rs.99,180/- to the complainant towards compensation.

11.POINT NO.3

          In the result the complaint is partly allowed. The opposite party is ordered  to pay a sum of Rs.99,180/-(Ninety nine thousand One Hundred eighty only) towards compensation to the complainant, besides a sum of Rs.10.000/-( Ten thousand only) towards litigation expenses

           The above amount shall be paid to the complainant within six weeks from the date of receipt of the copy of this order, failing which the above said amount shall carry 9% interest from the date of order till the date of payment.      

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 Forum on this the 22^nd  day of October 2021.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 23.06.2008          Agreement for sale dated between complainant and opposite party

Ex.A2 dated 23.06.2008          Construction agreement between complainant and opposite party

Ex.A3 dated 04.09.2008          Tripartite agreement between complainant opposite party and Indian Bank

Ex.A4 dated 24.06.2010          Letter by Indian Bank, Ease Abhiramapuram Branch to opposite party

Ex.A5 dated 17.07.2010                    Letter by opposite party to complainant

Ex.A6 dated 18.08.2010                   Letter by Complainant to opposite party

Ex.A7 dated 27.08.2010                   Letter by opposite party to complainant

Ex.A8 dated 20.10.2010                   Letter by Complainant to opposite party

Ex.A9 dated 01.11.2010                   Letter by opposite party to complainant

Ex.A10 dated 10.03.2011                 Letter by Complainant to opposite party

 

Ex.A11 dated 31.03.2011                 Letter by Complainant to opposite party

 

Ex.A12 dated 08.04.2011                 Letter by Complainant to opposite party

 

Ex.A13 dated 02.05.2011                 Letter by Complainant to opposite party

 

Ex.A14 dated 21.05.2011                 Letter by Complainant to opposite party

 

Ex.A15 dated 04.06.2011        Letter along with statement of accounts by opposite party to complainant

 

Ex.A16 dated 05.06.2011                 Letter by Complainant to opposite party

 

Ex.A17 dated 28.06.2011                 E-mail by opposite party to complainant

 

Ex.A18 dated 01.07.2011                 Letter by Complainant to opposite party

 

Ex.A19 dated 05.07.2011                 Letter by Complainant to opposite party

 

Ex.A20 dated 12.07.2011                 Letter by Complainant to opposite party

 

Ex.A21 dated 18.07.2011        Letter by Complainant to opposite party with acknowledgement card

 

 

Ex.A22 dated 19.08.2011                 No due certificate by opposite party to   

                                                    complainant

 

Ex.A23 dated 19.08.2011                 Letter by complainant to opposite party

 

Ex.A24 dated 05.09.2011                 letter by complainant to opposite party

 

Ex.A25 dated 19.04.2012                 Notice by complainant’s counsel to opposite party

 

Ex.A26 dated 16.05.2012        Reply by counsel for opposite party to counsel for complainant

 

LIST OF DOCUMENTS FILED BY THE    OPPOSITE PARTY:

 

                                                …… NIL …..

 

MEMBER – I                                                               PRESIDENT