Tamil Nadu

South Chennai

34/2012

Bhaskar Kumar Shroff - Complainant(s)

Versus

Housing Development Finance Corporation Ltd & Other - Opp.Party(s)

M/s. R.Kumar

09 Oct 2018

ORDER

                                                                        Date of Filing  : 06.02.2012

                                                                          Date of Order : 09.10.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                                : MEMBER-I

 

C.C. No.34/2012

DATED THIS TUESDAY THE 09^TH DAY OF OCTOBER 2018

                                 

Bhaskar Kumar Shroff,

S/o. Mr. Vishnu Kumar Shroff,

No.932 A/38, Jessore Road,

Flat 2C, Roopsagar Apartment,

Kolkata – 700 055.                                                      .. Complainant.                                               

 

            ..Versus..

1. Mantri Developers Pvt. Limited,

Rep. by its Director,

No.1/124, Rajiv Gandhi Salai,

(Old Mahabalipuram Road),

Padur,

Chennai – 603 103.

 

2. Housing Development Finance Corporation Ltd.,

Rep. by its Director,

ITC Centre,

No.760, Anna Salai,

Chennai – 600 002.                                             ..  Opposite parties.

          

Counsel for complainant            :  M/s. R. Kumar & others

Counsel for 1^st opposite party   :  M/s. Sarvabhauman Associates

Counsel for 2^nd opposite party  :  M/s. Sampathkumar & Associates &  

                                                       another

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying to rectify the deficiency in service by withdrawing the demand made for Equated Monthly Instalments and not raising any further demands for Equated Monthly Installments from the complainant till completion of the project Mantri Synergy 1 in all respects inclusive of common amenities as set out in the agreement for construction dated:28.02.2008 between the complainant and the 1^st opposite party and to pay a sum of Rs.2,50,000/- for the delay in completion of the project in violation of terms of agreement dated:28.02.2008 and to pay a sum of Rs.1,00,000/- towards compensation for mental agony and hardship with cost to the complainant.

1.    The averments of the complaint in brief are as follows:

The complainant submits that he booked a flat in the 1^st opposite party’s project, “Mantri Synergy 1”.  The complainant had booked the flat on the specific representation that all the blocks in the Project are of uniform nature and composition and that the project would be developed as a premium project providing high value to those who book at the inception of the project.   The 1^st opposite party entered into an agreement of sale of undivided share in the land and an agreement of construction dated:28.02.2008 with the complainant.  According to the terms and conditions, the 1^st opposite party has not carried out all the construction works even after creating a Tripartite Agreement with the 2^nd opposite party during March 2008.   The 1^st opposite party agreed to pay pre-EMI interest till handing over the possession of the apartment.  According to the agreement of construction, the possession of flat shall be handed over by December 2009.   On 27.05.2011, the complainant received a letter from the opposite party informing that the flat booked by the complainant have reached the completion stage and is ready for possession.  The complainant submits that the 1^st opposite party has handed over the possession of the property and the complainant took possession of the property in the year 2011.   The 1^st opposite party failed and neglected to do several works as per the specification in the agreement.  Further the complainant states that the complainant has paid the EMIs regularly without any default.   The complainant states that the 1^st opposite party has not even registered the undivided interest in land in favour of the complainant and therefore, the 2^nd opposite party ought not to have called on the complainant to make the EMI payment.   The act of the opposite parties caused great mental agony.  Therefore, the complainant issued legal notice dated:28.07.2009 and sent several emails and letter to the opposite parties but the opposite parties has not come forward to settle the demands of the complainant.   Thereafter, the complaint is filed.

2.      The brief averments in the written version filed by the  1^st opposite party is as follows:

The 1^st opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.  The 1^st opposite party states that the complainant offered to purchase an apartment in the 8^th Floor of Block E in “Mantri Synergy 1” and signed an application for allotment and paid the Earnest Money Deposit calculated at the rate of 10% on the total cost.  On cancellation, there shall be a deduction of Rs.10,000/- and the remaining EMD shall be refunded.   The complainant availed a housing loan from the 2^nd opposite party and therefore apart from the agreement of sale in respect of the undivided share in the land and the agreement for construction, the complainant, the 1^st opposite party and the 2^nd opposite party entered into a letter of undertaking/tripartite agreement in March 2008.  Due to the slide in the real estate market the cost of construction was reworked.    The 1^st opposite party is ready and willing to pay Rs.3 per sq. ft. from December 2009 to March 2011.  The compensation claimed by the complainant is exorbitant.   Therefore, the complaint is liable to be dismissed.

3.      The brief averments in the written version filed by the 2^nd  opposite party is as follows:

The 2^nd opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.  The 2^nd opposite party states that the complainant has closed his loan account with the 2^nd opposite party after paying a sum of Rs.5,13,000/- with interest on 26.06.2014, through sale of property, which was done by way of internal adjustment done from the housing loan availed with us by the purchaser of the property Mr. Abhinav Juyal’s housing loan account.  The title documents have been internally transferred to the purchaser’s loan account.  Hence, the 2^nd opposite party submits that the complainant has no liability to the 2^nd opposite party and also no grievance whatsoever as far as this complainant is concerned.   Therefore, there is no deficiency in service on the part of the 2^nd opposite party and the complaint is liable to be dismissed.

5. To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A14 are marked.  Proof affidavit of the 1^st opposite party filed and documents Ex.B1 to Ex.B3 are filed and marked on the side of the 1^st opposite party.  Proof affidavit of the 2^nd opposite party filed and document Ex.B4 is filed and marked on the side of the 2^nd opposite party.

6.      The points for consideration is:-

1. Whether the 2^nd opposite  party is liable to rectify  the service by withdrawing the demand made for equated monthly instalments as prayed for?

2. Whether the complainant is entitled to a sum of Rs.2,50,000/- towards the delay in completion and handing over the apartment by the 1^st opposite party as prayed for?

3. Whether the complainant is entitled a sum of Rs.1,00,000/- towards compensation for mental agony with cost as prayed for?

 

7.      On point:-

Heard both sides.  Perused the records namely the complaint, written version, proof affidavits, documents etc.  The learned Counsel for the complainant contended that on seeing the brochure of the 1^st opposite party Ex.A1, the complainant booked the flat on the specific representation that all the blocks in the Project are of uniform nature and composition and that the project would be developed as a premium project providing high value to those who book at the inception of the project.  The 1^st opposite party entered into an agreement of sale of undivided share in the land dated:28.02.2008 and an agreement of construction with clear terms as per EX.A3 & Ex.A2.  According to the terms and conditions, the 1^st opposite party has not carried out all the construction works even after creating a Tripartite Agreement with the 2^nd opposite party during March 2008 as per Ex.A4.   The 1^st opposite party agreed to pay pre EMI interest till handing over the possession of the apartment.   According to Ex.A2, the agreement of construction, the possession of flat shall be handed over by December 2009. On 27.05.2011, the complainant received a letter from the opposite party informing that the flat booked by the complainant have reached the completion stage and is ready for possession as per Ex.A10 proves that the 1^st opposite party has not complied the terms and conditions in the agreement.  On the other hand, the complainant was regularly paying the EMI without any delay.   As per Clause 14.5 of the agreement of construction vide Ex.A2 it reads as follows:

“In the event of delay in handing over possession of the Apartment beyond the time mentioned in Clause 6.1; the Developer shall pay a compensation of Rs.3.00 (Rupee Three Only) per sq. Ft. Of Saleable Area per month to the purchaser”.  

8.     The learned Counsel for the complainant further contended that the 1^st opposite party has handed over the possession of the property and the complainant took possession of the property in the year 2011.   Ex.B1 is the Completion Certificate issued by the Padur Panchayat.  The 1^st opposite party failed and neglected to do several works as per the specification in the agreement.  But the complainant has not pleaded and proved such deficiency in construction by the opposite parties.  The Advocate Commissioner appointed also returned the warrant without filing report stating that “Advocate Commissioner’s remuneration has not been paid” proves that the complainant has not established the allegation of deficiency in construction.  Further the contention of the complainant is that the complainant has paid the EMIs regularly and the 2^nd opposite party also filed a Memo which reads as follows:

“We do hereby confirm that the Loan A/c No.354802268 pertaining to Mr. Baskar Kumar Shroff has been closed fully.  Hence the Hon’ble Consumer Disputes Redressal Forum can be informed accordingly”.

 The only contentions remains back is compensation for the delay in handing over the possession of the flat.  The opposite party in its written version very clearly admitted that:

“Without prejudice to the above contention this opposite party submits that they are willing to pay a sum of Rs.3/- p.m. per sq ft from December 2009 to March 2011 for the delay in handing over of possession in keeping with Clause 14.5 of the Agreement for Construction”.

9.     The learned Counsel for the 2^nd opposite party contended that admittedly, the complainant entered into a Tripartite Agreement.   Accordingly, the complainant has paid the entire amount is proved from the Memo filed by the 2^nd opposite party which reads as follows:

“We do hereby confirm that the Loan A/c No.354802268 pertaining to Mr. Baskar Kumar Shroff has been closed fully.  Hence the Hon’ble Consumer Disputes Redressal Forum can be informed accordingly”.

10.    The contention of the 1^st opposite party is that the complainant offered to purchase an apartment in the 3^rd Floor of Block H in “Mantri Synergy 1” and signed an application for allotment and paid the Earnest Money Deposit  calculated at the rate of 10% on the total cost.  On cancellation, there shall be a deduction of Rs.10,000/- and the remaining EMD shall be refunded.   The complainant availed a housing loan from the 2^nd opposite party and therefore apart from the agreement of sale in respect of the undivided share in the land and the agreement for construction, the complainant, the 1^st opposite party and the 2^nd opposite party entered into a letter of undertaking/tripartite agreement during March 2008 and the interest due on the loan for the first 2 years or till the date of handing over the possession. 

11.    As per the tripartite agreement clause 6 E and F it reads as follows:

“The borrower shall not cancel / alter the allotment / booking / allocation of the flat made to the borrower without obtaining a ‘No Objection Certificate’ from the HDFC in this regard.  In the event, the borrower cancelling his allotment / booking / allocation of the said flat, the developer undertakes to refund the entire amount (loan amounts received from HDFC) with the developer (loan facility together with any interest due) to HDFC directly.  However borrower agrees in case of cancellation he will bare the entire Pre Emi paid by the developer till that date and the cancellation charges”.

12.    Due to the slide in the real estate market the cost of construction was reworked.    In this case, the complainant has regularly paid the EMIs and settled the loan account.  This opposite party paid pre EMI interest.  There was a delay in handing over the possession of the property is admitted by the opposite party.   The 1^st opposite party also admitted in the written version that they are ready and willing to pay Rs.3 per sq; ft. from December 2009 to March 2011 for the delay in handing over possession.    But at a later stage, the 1^st opposite party filed a Memo stating that the complainant not only enjoyed the pre EMI interest waive off from March 2008 till February 2011 but also sold the property pending complaint through an assignment agreement to the third parties.  Therefore, having sold the property the complainant is no longer a consumer.  But on a careful perusal of Ex.B3, it is seen that on 03.05.2013 an assignment agreement was entered between the complainant, opposite party and third party.  The Counsel for complainant submitted that since there was a delay in handing over possession, the complainant is entitled for compensation.  The sale of property pending the complaint does not prevent the complainant from claiming compensation for the delay in handing over possession.  Hence the contention of the opposite party that the complainant is not a consumer; is not acceptable. 

13.    The opposite party cited a decision in:

 IV (2015) CPJ 516 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

Between

DCM LTD.

-Versus-

MAJOR R.D. GAIND (HUF)

Held that

“The respondent complainant by independent transaction had transferred his interest in the subject flat to M/s. Atlantic commercial Company Limited and with that transfer, the relationship of consumer and service provider between the parties came to an end.  Therefore, the respondent complainant has no lous standi to maintain the consumer complaint”.

The above cited case is not applicable to the present case because in the said case after having sold the property, the complainant filed the complaint whereas in the present case pending complaint only the complainant sold the property. Therefore, the opposite party has committed deficiency in service by handing over the possession belatedly which is also proved by the opposite party’s documents.  Accordingly, the complainant is entitled for the compensation for the delay in handing over possession from 01.12.2009 to 28.02.2011.  Considering the facts and circumstances of the case this Forum is of the considered view that the 1^st opposite party shall pay a sum of Rs.3/- per sq. ft. for 1400 sq. ft. from December 2009 to March 2011 Rs.63,000/- towards the delay in handing over the possession and a sum of Rs.10,000/- towards compensation for mental agony and Rs.5,000/- towards cost.

In the result, this complaint is allowed in part. The 1^st opposite party is directed to pay a sum of Rs.63,000/- (Rupees Sixty three thousand only) towards compensation for the delay in handing over possession and to pay a sum of Rs.10,000/- (Rupees Ten thousand only) towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant. The complaint against the 2^nd opposite party is dismissed.

The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 09^th  day of October 2018. 

 

MEMBER –I                                                                      PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1		Copy of Brochure of the 1st opposite party
Ex.A2	28.02.2008	Copy of Agreement of construction
Ex.A3	28.02.2008	Copy of agreement of sale
Ex.A4	March 2008	Copy of Tripartite agreement between the complainant, 1st  & 2nd opposite parties
Ex.A5	14.04.2009	Copy of letter from Mantri Synergy Owners’ Forum to the 1st opposite party
Ex.A6	28.07.2009	Copy of legal notice issued on behalf of the complainant and other owners to the 1st opposite party
Ex.A7	01.04.2011	Copy of E-mail from the 1st opposite party to the complainant
Ex.A8	07.04.2011	Copy of E-mail  from complainant to 1st opposite party
Ex.A9	28.04.2011	Copy of E-mail from the complainant to the 2nd opposite party
Ex.A10	27.05.2011	Copy of letter from the 1st opposite party to the complainant
Ex.A11	27.05.2011	Copy of Report prepared by Mr. T.A.S. Rajagopalan
Ex.A12	30.05.2011	Copy of mail from the Consumer Association of India to the 1st opposite party
Ex.A13	02.06.2011	Copy of mail from the 1st opposite party to the Consumer Association of India
Ex.A14	14.07.2011	Copy of E-mail from the 2nd opposite party to the complainant and the complainant’s reply

 

1^ST OPPOSITE  PARTY SIDE DOCUMENTS: 

Ex.B1	07.03.2011	Copy of completion Certificate issued by the Padur Panchayat
Ex.B2	18.02.2014	Copy of Advocate Commissioner’s Report in C.c. No.190/2011 District Consumer Disputes Redressal Forum, Chennai (North)
Ex.B3	03.05.2014	Copy of Assignment Agreement

 

2^ND OPPOSITE  PARTY SIDE DOCUMENTS: 

 

Ex.B4

24.10.2016

Original letter of the 2nd opposite party stating that they have enclosed a Demand draft for Rs.300/- towards cost for filing proof affidavit with postal receipt

 

 

MEMBER –I                                                                      PRESIDENT