Tamil Nadu

North Chennai

274/2012

Moolchan ranka, Nitin Ranka, - Complainant(s)

Versus

Emaar MGF Land Ltd, - Opp.Party(s)

M/s.K.Lavan

26 Aug 2016

ORDER

                                                            Complaint presented on:  26.12.2012

                                                                Order pronounced on:  28.09.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

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

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

WEDNESDAY THE 28^th DAY OF SEPTEMBER 2016

 

C.C.NO.274/2012

 

 

1. Moolchand Ranka , S/o.Bhawarlal,

2. Nitin Ranka, S/o, Moolchand Ranka,

Complainants 1 and 2 are residing at,

No.7A, New Vaidyanathan Street,

Tower No.4, Flat No.404, Esplanade,

Tondiarpet,  Chennai – 600 081.

 

                                                                                    ….. Complainants

 

..Vs..

Emaar MGF Land Ltd.,

No.7A, New Vaidyanathan Street,

Tondiarpet, Chennai – 600 081.

 

 

.....Opposite Party

Date of complaint                                 : 31.12.2012

Counsel for Complainant                      : M/s. K.Lavan

Counsel for Opposite Party                      : M/s.K.Gowtham Kumar

 

 

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Opposite Party developed a project in the name and style of “Esplanade” at No.7A, New Vaidyanathan Street, Tondiarpet, Chennai – 600 081. The Complainants agreed to purchase a flat No.404 in the said project. The Complainants gave General Power of Attorney (GPA) in favour of the Opposite Party for getting approvals from the concerned authority. The Complainant also got the sale deed registered on 08.12.2010 from the Opposite Party. A construction agreement was entered with the Opposite Party on 02.11.2012, to construct a flat with a super built-up area admeasuring 1628.39 sq.ft. with one reserved car parking. The Complainants wrote a letter dated 04.04.2011 to the Opposite Party to return the GPA. The Opposite Party sent a letter dated 28.06.2011 offered to take possession of the flat as the same is completed in all respects. However the Complainants wrote a letter dated 30.06.2011 to the Opposite Party, Still the work is pending and also to hand over after completion with documents. The said letter received by the Opposite Party on 01.07.2011. The Complainants given a letter dated 27.07.2011 to the Opposite Party that they have taken possession of the flat with following defects and to rectify the same immediately.

10. The Complainants further state that till date the Opposite Party has not rectified the following pending works and the Complainants were forced to got the work done at their cost.

a.RO System-Power plug not fixed and the same was fixed by Complainants at their cost.

b. Living Hall – Fan regulator not working and the same was replaced by Complainant at their cost.

c. all windows & French doors – Pest not done (Rain water comes inside)

d. Bathroom living room, Kitchen Balcony tiles not fixed properly – it is unevenly laid.

However, the Opposite Party did not rectify the above defects. The Opposite Party also collected a sum of Rs.2,00,000/- towards corpus fund for maintenance of the building assuring that the maintenance charge will be collected till the association is formed. However, the Opposite Party demanding the Complainants to pay maintenance charges and building owners association also not formed. The Opposite Party also installed Generator adjacent to the Complainants car park which obstructs free flow of usage of his car to park & out.  Further heat comes from the Generator also damages his car. Due to failure to rectify the defects the Complainants suffered with mental agony. Hence the Complainants issue legal notice dated 17.02.2012 & 27.07.2012 and even after that the Opposite Party did not rectify the defects. Hence the Complainants filed this Complaint for compensation with cost of the Complaint.

2. WRITTEN VERSION OF THE OPPOSITE PARTY IN BRIEF:

          It is a fact that the Opposite Party took a General Power of Attorney (GPA) not only from the Complainants but also from all the purchasers during phase 1 of the project. The GPA were given by the purchasers to the Opposite Party to apply to the statutory authorities for the permission for phase 2 of the project only, as phase 1 of the project was already granted necessary approvals. When the files were before the statutory authorities, the GPA given by the Complainants along with GPA given by a few other purchasers was misplaced. It was for this reason that the GPA could not be returned. In fact the Opposite Party had informed this to the Complainants and had also informed them that the Opposite Party can execute a declaration to this effect and that the GPA can be cancelled. The Complainants however for the reasons best known to them have not chosen to do the same and have resorted to make false allegations in this regard. As per the construction Agreement executed between the parties, the maintenance of the project was to be carried out by the  Opposite Party had appointed M/s. Emaar MGF services Pvt Ltd., as the agency to carry out the maintenance activities in the complex where the Complainant has an apartment. The Complainants not only failed to sign the Maintenance Agreement but also refused to pay the maintenance charges for the maintenance and upkeep of the complex. Despite the Complainants not making the payments and failure to sign the maintenance agreement still the said M/S. Emaar MGF Services Pvt. Ltd., was doing its maintenance work without being paid by the Complainants. All the apartment owners have signed separate Maintenance Agreements with the said company/maintenance agency and are liable to pay the maintenance charges to the said company directly. As such the Opposite Party has no role in the maintenance of the project except to the extent that it had indentified the said company. The Complainants have chosen to file the present Complaint without making the said Emaar MGF Services Pvt. Ltd., which is a separate legal entity as a party and the Complaint is liable to be dismissed for non-joinder of necessary party. The Complainants had visited the unit and had made certain observations to the customer care team of the Opposite Party. The customer care team of the Opposite Party had then informed the issues raised by the Complainants to the project team, which had then rectified the issues and had called the Complainants, for a joint inspection.  At the joint inspection, the Complainants raised fresh issues different from that of the 1^st visit. These issues were minor snags which were rectified and it is only consequent to such rectification that, the apartment was handed over to the Complainants. Thus the rectification of all the issues raised by the Complainants during the joint inspection, the Opposite Party had handed over the physical possession of the apartment to the Complainants. Therefore the Opposite Party has not committed any deficiency and prays to dismiss the Complaint with cost.

3. POINTS FOR CONSIDERATION:

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

          2. Whether the complainant is entitled to any relief? If so to what extent?

4. POINT NO :1

          The admitted facts are that the Complainants purchased a flat No.404  “Esplanade” at No.7A, New Vaidyanathan Street, Tondiarpet, Chennai – 600 081 promoted by the Opposite Party and  the said flat measuring 1628.39 sq.ft and the Opposite Party executed a sale deed on 08.12.2010 in favour of the Complainants in respect of land and the Complainants gave  General Power of Attorney (GPA) dated 03.12.2010 to the Opposite Party for getting approvals for construction of the  flat and  Ex.A1 construction agreement dated 02.11.2010 executed between the Complainants and the Opposite Party and the Complainants also took possession of the flat and also paid corpus fund to the Opposite Party.

          5. According to the Complainants the deficiency found as per Ex.A3 letter on the date of joint inspection and also found on the date of possession of the flat on 27.07.2011 as follows: 

1. Living Hall &           Kitchen flooring tiles maximum damaged & not properly Fitted/not properly level.
2. IInd Bed Room flooring profile is damaged.
3. All bath rooms CP fitting foolish shine dull & blackish dots.
4. Kitchen utility area – washing machine drain pipe blocked.
5. Franch doors of Balcony are not signed & not properly looking
6. Rain water comes inside from outside windows.

The Complainants sent Ex.A3 letter that  during joint inspection they had said certain defects and the said defects were not rectified and even after that   he wrote a letter to the Opposite Party referring such a defects and the same was received by him on 01.07.2011.

6. The Opposite Party contended that at the time of the Complainants took possession of the flat after their full satisfaction and therefore there are no defects in the flat.  The Complainant sent Ex.A4 letter dated 27.07.2011 to the Opposite Party that as per the letter of the Opposite Party dated 28.06.2011, the Complainants have undertaken physical possession and rectification or still pending till today and requiring him to rectify the pending works as per their letter, Ex.A3 dated 30.06.2011.  The Opposite Party received the Ex.A4 letter on 27.07.2011 itself and endorsed that shall check and revert.  However after such endorsement the Opposite Party did not give any communication to the Complainants that he had rectified the above said defects.  The Complainants also issued Ex.A5 legal notice dated 17.02.2012 and another notice Ex.A6 dated 27.07.2012 that the Opposite Party did not rectify the defects. However the Opposite Party did not give any reply for those notices and also not rectified the defects referred in Ex.A3.  Therefore  the Opposite Party even after acknowledging the defects mentioned in Ex.A3 and thereafter did not rectify the defects in the flats establishes that the Complainants proved the deficiency  committed by the Opposite Party and accordingly we hold that the Opposite Party has committed  Deficiency in Service.

7. POINT NO:2

          Though the Complainants alleged defects in Ex.A3 to be rectified by the Opposite Party, he did not adduce any material to show that what could be the amount required to rectify such defects.  Due to such defects the Complainants suffered with the mental agony is also accepted. Therefore considering the defects and mental agony suffered by the Complainants due to such defects we are of the view to rectify the defect and for mental agony it would be appropriate to order a sum of Rs.1,00,000/- by way of compensation to the Complainants payable by the Opposite Party and besides a sum of Rs.5,000/- towards litigation expenses.   

In the result the Complaint is partly allowed. The Opposite Party is ordered to pay a sum of Rs.1,00,000/- (Rupees one lakh only ) to the Complainant  to rectify the defects   and towards compensation for mental agony, besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses.

        The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 28^th  day of September 2016.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 02.11.2010                   Construction agreement executed between the

                                               Complainants and Opposite Party

 

Ex.A2 dated 04.04.2011                   Letter sent by first Complainant to Opposite Party

Ex.A3 dated 30.06.2011                   Letter sent by first Complainant to Opposite Party

Ex.A4 dated 27.07.2011                   Letter sent by first Complainant to Opposite Party

Ex.A5 dated 17.02.2012                   Legal notice sent by first Complainant’s counsel to

                                                Opposite Party

 

Ex.A6 dated 27.07.2012                   Legal notice sent by first Complainant’s counsel to

                                                Opposite Party

 

Ex.A7 dated 25.02.2012                   Acknowledgement card received from Opposite

                                                Party

 

Ex.A8 dated 01.08.2012                   Acknowledgement card received from Opposite

                                                Party

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTY :                                       ….NIL…..
MEMBER – II                                                               PRESIDENT